R (Ala) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Moses |
| Judgment Date | 19 March 2003 |
| Neutral Citation | [2003] EWHC 521 (Admin) |
| Docket Number | Case No: CO/3497/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 March 2003 |
[2003] EWHC 521 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Moses
Case No: CO/3497/2002
Miss Frances Webber (instructed by A.S. LAW) for the Claimant
Mr Ashley Underwood QC (instructed by The Treasury Solicitors) for the Defendant
Introduction
In this application, brought with leave of the single judge, the claimant seeks an order quashing the decision of the Secretary of State for the Home Department. That decision certified the claimant's human rights claim as "manifestly unfounded" in accordance with Section 72(2)(a) of the Immigration & Asylum Act 1999 (the "1999 Act"). The decision was dated 17 th April 2002 but was not sent until 18 th June 2002. The Secretary of State concluded that the claimant was properly removable to Germany under the provisions of the Dublin Convention. He confirmed that view in subsequent letters dated 5 th July 2002 and 27 th August 2002. The claimant contended that to remove him would be to breach his rights under Article 8 of the European Convention on human rights because the removal was disproportionate. Whether such an argument is manifestly unfounded turns upon the nature of an Adjudicator's jurisdiction under Section 65 of the 1999 Act. There was no dispute between the parties but that if the Adjudicator, on an appeal, is entitled to substitute his own decision as to proportionality for the decision of the Secretary of State then the claimant's claim that his Article 8 rights were infringed is arguable and could not be said to be manifestly unfounded. On the other hand, if the Adjudicator's jurisdiction is limited to considering whether the Secretary of State's decision fell within what is traditionally described as a "discretionary area of judgment" then the Secretary of State's certification could only successfully be impugned in an application before this court, if it was arguable that his decision was outwith the range of reasonable responses to the question of proportionality.
The Facts
The claimant is an ethnic Albanian from Kosovo. He is a national of the Federal Republic of Yugoslavia. He left Kosovo in February 1995, and travelled to Germany where he applied for political asylum. That application was refused in 1996. He then entered the United Kingdom, clandestinely, in October 1997. There too, he made an application for asylum, but withdrew that application. He was removed to Belgium on 7 th October 1997. He applied for asylum in Belgium but withdrew that application. He then travelled from Belgium to Macedonia and from there returned to the United Kingdom arriving on 15 th October 1997.
On 3 rd April 1998 the Secretary of State for the Home Department certified the claimant's application for asylum under Section 2(1) of the Asylum and Immigration Act 1996. The German authorities had accepted responsibility for determining the claimant's claim for asylum. The Secretary of State gave directions for the claimant's removal to Germany.
The claimant, like other Kosovans including Besnik Gashi, sought judicial review of the refusal to deal with his asylum claim, a few days after Besnik Gashi. His claim was deferred pending the outcome of Gashi's case. At that time the Secretary of State was granting refugee status to all Kosovans whose claims he was considering substantively and since March 1998, he had not removed Kosovan asylum claimants to Germany.
In March 1999 the Court of Appeal ruled in favour of Besnik Gashi ( R – SSHD ex parte Besnik Gashi [1999] 1MM AR 415) The Secretary of State appealed to the House of Lords. The claimant and others had their claims deferred pending the resolution of that appeal. By June 1999 peace had been restored to Kosovo although the claimant asserted that his home area of Mitrovice was still not under control. He said it had formerly been a Serb redoubt.
In the meantime, the claimant had met a British citizen, Jennifer Souter. She had a 14 year old daughter. The claimant married Jennifer Souter on 14 th August 1999. On 20 th August 1999 the claimant made an application that his claim should be dealt with substantively in the United Kingdom because of that relationship. He claimed in the alternative for leave to remain on the basis of the marriage. On 15 th June 2000 in R v Secretary of State for the Home Department ex parte Gashi and Gjoka (unreported), the court held that the Secretary of State was entitled to rely on changed circumstances to remove to Germany Kosovans whose claims had not been deferred pending resolution of the Besnik Gashi case. Following that judgment, the Secretary of State took the view that the judgment applied equally to Kosovans whose cases had been certified before the case of Besnik Gashi. On 12 th October 2000 the Secretary of State withdrew his appeal to the House of Lords in Besnik Gashi.
On 1 st November 2000 the Secretary of State wrote to the claimant's solicitors stating that he took the view that there was now no significant disparity between the approach of the United Kingdom and Germany as regards asylum claims by Kosovan Albanians and asserted that he was entitled to maintain his certificate in the claimant's case. He advised that he could find no compelling or compassionate grounds which would cause him to part from his normal policy and practice and that the claimant should return to Germany for consideration of his asylum application under the Dublin Convention.
On 9 th October 2000 the claimant's solicitors asked for consideration of compassionate circumstances relying upon the marriage, the claimant's wife's pregnancy and the killing of members of the claimant's family in Mitrovice.
On 12 th March 2001 the Court of Appeal held in Zeqiri v Home Department [2002] Imm AR 42 that persons in the position of the claimant had a legitimate expectation that their asylum claims would be dealt with substantively in the United Kingdom. On 1 st June 2001 the claimant and his wife's son Jordan was born.
On 18 th June 2001 the Secretary of State refused the claimant's application for leave to remain in the United Kingdom on the basis of recent marriage to a British citizen. On 22 nd January 2002 the Secretary of State rejected the claimant's human rights arguments based upon Article 3 and Article 8 of the European Convention on Human Rights.
On 24 th January 2002 the House of Lords reversed the ruling of the Court of Appeal in Zeqiri [2002] Imm AR 296. It held that there was no legitimate expectation that claims deferred pending Besnik Gashi would be considered substantively in the United Kingdom and that the re-certification by the Secretary of State of their claims was not unfair.
On 30 th January 2002 the solicitors on behalf of the claimant launched the appeal which forms the basis of this application. The appeal was brought pursuant to Section 65 of the Immigration and Asylum Act 1999. By letter dated 17 th April 2002 which was only sent on 18 th June 2002 the Secretary of State decided that the claimant's reliance on Article 8 was manifestly unfounded and accordingly certified the allegation pursuant to Section 72 (2)(a) of the 1999 Act. He wrote:-
"3. The question for the Secretary of State is whether the potential interference with your client's right to respect for his family life, if he were to be returned to Germany, would be proportionate and commensurate when balanced against his legitimate concerns in the public interest to maintain a credible and effective immigration control to the United Kingdom, and to deter abuse of the asylum system (sic).
4. Parliament has set a mandatory requirement for a foreign national seeking settlement in the U.K as a foreign spouse to hold prior entry clearance for that purpose. The Secretary of State attaches the greatest weight to this mandatory requirement and he is firmly of the view that this requirement should be waived only in the most exception of circumstances."
The letter then refers to the decision of the Court of Appeal in Amjad Mahmood [2001] 1 WLR 840. He continues by referring to the right of the claimant to apply for entry clearance abroad and asserts:-
"The interference to your client's right for respect to family life would be temporary and would obtain only for the duration of the time it would take for him to apply for the requisite entry clearance and for his application to be processed."
He continues:-
"11. Your client should not profit by his unlawful travel to and presence in, this country to the disadvantage of those who obtain the means to enter and remain in the U.K lawfully. Were the Secretary of State to permit persons in your client's situation to remain in the United Kingdom this would run contrary to his duty to Parliament to maintain a credible and effective immigration control."
On 3 rd July 2002 the claimant's solicitors amplified the circumstances in which the claimant and his wife had found themselves. The claimant was prevented from working. His wife could not work because of health problems. His wife could not go to Germany because of her commitments to her children and because of the adverse consequences for her health. It was those features which, they contended, distinguished the claimant's case from that discussed by the Court of Appeal in Amjad Mahmood.
On 5 th July 2002 the Secretary of State maintained his decision in a letter which asserted that the claimant was not "in the United Kingdom" for the purposes of the Secretary of State's policy substantively to consider claims to asylum in the...
To continue reading
Request your trial
-
Edore v Secretary of State for the Home Department
...rather difficult determination, I am able instead to turn immediately to a recent unreported decision of Moses J in Ismet Ala -v—Secretary of State for the Home Department [2003] ECHC 521 (Admin) dated 19 March 2003 which for my part I have found enormously helpful on the very question we a......
-
CF v Secretary of State for the Home Department and another
...v Shetty [2003] EWHC 3022 (Admin). R (on the application of Ala) v Secretary of State for the Home Dept [2003] EWCA 521 (Admin), [2003] All ER (D) 283 (Mar). R (on the application of BP) v Secretary of State for the Home Dept [2003] EWHC 1963 (Admin), [2003] All ER (D) 310 R (on the applica......
-
Huang v Secretary of State for the Home Department; Abu-Qulbain v Same; Kashmiri v Same
...supported by authority and precedent. Their Lordships looked at R(Ala) v Secretary of State for the Home DepartmentUNK (unreported (2003) EWHC (Admin) 521), Edore v Secretary of State for the Home DepartmentTLR(The Times July 7, 2003; (2003) INLR 361) and noted there was a dichotomy between......
- Huang v Secretary of State for the Home Department; Abu-Qulbain v Same; Kashmiri v Same