R (AK (Sri Lanka)) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMR JUSTICE CRANSTON
Judgment Date10 September 2008
Neutral Citation[2008] EWHC 2737 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date10 September 2008
Docket NumberCO/6990/2000

[2008] EWHC 2737 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

MR JUSTICE CRANSTON

CO/6990/2000

Between
The Queen On The Application Of Krishnapillai
Claimant
and
Secretary Of State For The Home Department
Defendant

Mr S Cox (instructed by Fisher Meredith) appeared on behalf of the Claimant

Mr P Patel and Mr R Dunlop (instructed by the Treasury Solicitor) appeared on behalf of the Defendant

(Approved by the court)

MR JUSTICE CRANSTON
1

The claimant in this case is a 38-year-old unmarried Sri Lankan Tamil. She came to the United Kingdom in 1992 when she was 23 years old. On her arrival, she lived first with her brother, then with her cousin. From October 1997 she lived with her sister, her sister's husband and their children. She was removed from this country to Sri Lanka on 18th February 2008. She challenges that decision on both human rights and public law grounds. The crucial legal issue is the extent to which reliance might be placed on Article 8 to resist removal of a claimant who says it will have adverse consequences for her mental health. A secondary issue is the extent to which delay can strengthen such a claim against the backdrop of the claimant's relationship with her family.

Background

2

The claimant entered the United Kingdom unlawfully, using a false British passport. She claimed asylum in 1992. She was interviewed in 1994, asylum was refused in 1995 and the matter then went to an adjudicator in 1996.

3

Mr John Boyd QC, the adjudicator, said that he was not satisfied that she was a credible witness. She had claimed that the Tamil Tigers (“the LTTE”) had attempted to conscript young Tamil boys and girls to their movement and her account had been that consequently she had had to move twice. Mr Boyd QC said there was no evidence which satisfied him that she had had to move from place to place to avoid conscription by the Tamil Tigers. He also said that her experiences in Sri Lanka did not indicate that the authorities had any significant interest in her. She had been arrested twice, once in a sweep of young Tamils, but had been released after a few hours. On the second occasion, she was again released after a short detention, without charge. Mr Boyd noted that she was able to get a Sri Lankan passport in her own name and to leave the country without difficulty. He also took into account the situation for Tamils in Sri Lanka, which has oscillated over the years. He refused her claim.

4

The claimant appealed but permission to appeal was refused. She then made further submissions to the defendant Secretary of State about asylum in 1997, on the basis of the general security situation in Sri Lanka. Meanwhile, she was working and by 2001 she had also obtained a bachelor's degree in Business and IT from the University of Westminster. In 2002 further submissions were made on her behalf. Some of those submissions were made through her local Member of Parliament, the Right Honourable Margaret Hodge MP. In April 2002 the Home Office rejected her further submissions. In May 2002 she made human rights submissions based on the general security situation in Sri Lanka with a relatively short mention of her Article 8 rights. It is fair to note that human rights claims could only be advanced post-October 2000, when the Human Rights Act 1988 became effective. In 2003 the claimant submitted additional grounds to the defendant.

5

In late 2003 the matter of her human rights claim came before an adjudicator, Mr Boardman. She was represented by counsel at that hearing. In his ruling, dated 23rd December 2003, Mr Boardman said that he could not find that the claimant had established a family life in the United Kingdom, despite living initially with her brother, living subsequently with her sister and associating very frequently with her other family members in the United Kingdom. At paragraph 28 he said:

“I find that those amount at most to the normal emotional ties of members of a family, but, in the light of the fact that the [claimant] was 23 when she arrived in the UK, I also find that there is no evidence of dependency before me to suggest that those ties amount to a sufficient link to give rise to family life for the purposes of the protection of Article 8.”

Mr Boardman went on to find that she did have a private life in the United Kingdom but that removal to Sri Lanka would not interfere with that right. At paragraph 30 he said that the Secretary of State's decision was pursuant to the lawful aims of immigration control, in accordance with law, and that the Secretary of State's decision was proportionate.

6

In his reasons Mr Boardman balanced a number of factors: that the claimant had been in the United Kingdom for nearly 11 years; that that represented about a third of her life; that she had integrated into society with jobs, worship and friends; that she lived with her sister; that she had no close relatives in Sri Lanka; and that she would be returning to Sri Lanka as a single woman with no immediate male support. He also took into account the fact that there were some 4 years between her first application for asylum and the refusal in 1996, and a further 5 years between her second asylum application and the refusal in 2002. However, he said that she had established a private life in the United Kingdom in full knowledge of her precarious immigration status. He also said that any delay in the defendant dealing with her second application was in the context of an appeal from her previous application. The fact was that she had parents and other siblings who had moved to several different countries. Thus her brother, with whom she had lived, had moved to Canada in 1999. Mr Boardman said:

“… the fact, as I find, [is] that the public interest in maintaining an effective immigration control outweighs respect for the [claimant]'s private life in this case.”

7

The claimant applied for permission to appeal Mr Boardman's decision to the Immigration Appeal Tribunal. She also wrote again to her Member of Parliament and included submissions to be sent on to the Home Secretary. Those representations were couched in terms of the case being reconsidered on a compassionate basis outside the Immigration Rules. Her legal representative wrote:

“The threat of her removal from the United Kingdom after eleven years of well-settled peaceful life, to Sri Lanka where the political situation is still unsettled has very much affected our client physically, mentally and psychologically. We, therefore, kindly appeal to the Rt. Hon. Minister to take a humanitarian and compassionate view of her circumstances and grant her humanitarian discretionary leave. We are of opinion that such a situation would definitely revitalise her confidence and courage. It would also help her to look for a future with confidence.”

8

Meanwhile, the claimant's application for permission to appeal Mr Boardman's decision was refused. In refusing permission, Miss Mensch, a vice president on the Immigration Appeal Tribunal, said that the adjudicator had given clear and sustainable reasons why he did not consider that family life had been established.

9

In 2005, a year later, the claimant applied for indefinite leave to remain under a long residence policy. There was a hitch in the way that this claim was submitted, but ultimately the proper form was sent to the Home Office. In the application, the claimant herself wrote that she had no one in Sri Lanka, that since arrival she had been living with her sister, and that she had established a well-settled private and family life. She said that she had been living in the United Kingdom for more than 12 years and during that time had studied English and had obtained a degree. She had been working for more than 10 years, 4 years in the technical department of PC World. She said that IT personnel were well needed in the United Kingdom and there was still a shortage, and she pointed out the possibilities of her obtaining a senior position.

10

In November 2005 the claimant's legal representative again wrote to the Home Office to put her case. The legal representative said that during what was now her 13-year stay in the country she had obtained a degree and she was leading a peaceful life, she had her sister and other relatives, she was well settled as a family with them, she had no one in Sri Lanka and, since she had been out of Sri Lanka for a long time, she had no knowledge of anyone back in Sri Lanka.

11

Over 12 months later, in December 2006, different legal representatives sent a letter to the Home Office relating to the application to remain in the United Kingdom on the basis of long residence. That letter included a letter from Dr Nicholas-Pillai, a general practitioner at the Bush Hill Medical Practice. Dr Nicholas-Pillai's letter was dated 11th November 2004. In that letter Dr Nicholas-Pillai said that the claimant had been suffering from post-traumatic stress syndrome. He set out a number of other aspects of her condition: a loss of appetite, a loss of weight and a loss of memory of the past. There were also flashbacks. In an important passage he said:

“Her depression sometimes gets worse and she feels suicidal and feels that she should not live.”

12

It is convenient to record at this stage that there is also a letter from another medical practitioner, dated June 2006. It is shorter than Mr Nicholas-Pillai's letter. It expresses the medical condition of the claimant, the depressive features. That letter was only produced to the Secretary of State on the day of the claimant's removal from this country and Mr...

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