R Ali v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Judge Pelling |
| Judgment Date | 12 September 2011 |
| Neutral Citation | [2011] EWHC 3813 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 September 2011 |
| Docket Number | Case No: CO/5114/2011 |
[2011] EWHC 3813 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Sitting at:
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX
His Honour Judge Pelling
Case No: CO/5114/2011
Mr Lee appeared on behalf of the Claimant.
Mr Fullwood appeared on behalf of the Defendant
(As Approved)
This is a renewed application for permission to commence judicial review proceedings challenging a decision of the defendant dated 28 March 2011 refusing to treat further submissions made by reference to Articles 3 and 8 of the European Convention on Human Rights as a fresh claim so as to entitle him and therefore his relatives the benefit of an in-country right of appeal. Permission was refused by me on paper on 1 August 2011 when I certified the claim to be wholly without merit.
The claimant's immigration history is set out in the appendix to the summary grounds of resistance filed by the respondent. In summary the claimant arrived in the United Kingdom on a valid student visa in 2003. He was granted leave to remain until 31 January 2009. On 22 February 2007 the claimant's wife and children arrived in the United Kingdom and they too were given permission to remain until 31 January 2009.
In October 2008 the claimant made an asylum claim that was rejected. There was an appeal and, following various adjournments the reasons for which it is unnecessary to dwell upon, the appeal was determined on its merits and dismissed by the Immigration Judge on 16 June 2009. It is, I think, accepted that the Immigration Judge considered the Article 8 issues that arose in the case and considered the Article 8 issues by reference to both the claimant himself and his family albeit, as will become apparent shortly, not by reference to the legal principles that now apply.
An application for reconsideration was dismissed by the Senior Immigration Judge in July 2009 and by the High Court in November 2009. Removal directions were served on 15 March 2011 for a flight leaving on 29 March 2011. Further representations were lodged on 16 and 22 March 2011 and they were rejected principally by a letter of 28 March 2011 but also in a letter of 29 March 2011 from the defendant to the claimant's legal advisers.
The primary basis on which this application is advanced orally on renewal is by reference to Article 8 and, in particular, by reference to the Article 8 rights of the four children, which, it is submitted, now have to be viewed having regard to the principles set out in section 55 of the Borders Etc Act 2009, which carry into effect the principles found in the United Nations Convention on the Rights of the Child and the decision of the Supreme Court in ZH (Tanzania) v SSHD [2011] UKSC 4.
In the decision letter of the 29 March 2011 the defendant said this:
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" Following the Supreme Court's judgment in ZH (Tanzania) [2011] UKSC 4 and taking into account the UK Border Agency's obligation under Section 55 of the Borders Citizenship and Imigration Act 2009 the position in relation to your client's children has now been further considered. While considering whether it is proportionate to remove your client from the United Kingdom the best interests of the children have been fully considered. For the reasons given above it is considered that your client's children will not face any difficulties in returning to Pakistan where they may continue to enjoy their private and family life. The children may continue their education and their preference for to remain in the United Kingdom is not sufficient to establish that their best interests are in remaining in the United Kingdom. For all of the reasons already outlined in the reasons for refusal letter of 28 March 2011 it is not considered that your client and his family would face a real risk of the children being kidnapped as per your submissions or that returning to their home country would prevent them from acquiring a good education, having friendships and access to healthcare. Your client has himself been successful in establishing an academic background and he and his wife have shown that they possess business acumen having established a business in the UK. There are no reasons to consider that return to Pakistan would be anything other than an inconvenience for the family. It is therefore not accepted that your client's children may benefit from the decision in ZH".
In the decision letter of 28 March 2011 the defendant said this in relation to the issue I am now considering:
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"Consideration has been given to your children's best interests in line with Section 55 of the Borders Citizenship and Immigration Act 2009. Section 55 of the 2009 Act requires the Secretary of State to make arrangements for ensuring that immigration asylum nationality and customs functions are discharged having regard to the need to safeguard and promote the welfare of children in the United Kingdom. It is important to note that the operation of this duty does not mean that the Secretary of State for the Home Department in this case has new functions or that her pre existing functions are overridden However Section 55 means that the SSHD must have the duty in mind when making decision in relation to cases where children are involved. In the circumstances the best interests of your children have been considered when making all decisions in regard to both your asylum claim and your further submissions. Although not explicitly stated the welfare of your children has been considered at every stage of your asylum claim."
The letter then goes on to identify the four children and giving their dates of birth to rehearse that the children are progressing well with their education in the United Kingdom and to acknowledge that, although it was important that the child had access to education and leisure facilities, it was considered more important that a child was surrounded by a supportive family and the letter then continued in these terms:
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"As you are not residing in the UK legally and will be returned to Pakistan it is in the best interests of your children that they return with you. Furthermore although it is not in dispute that education and leisure facilities and opportunities may be inferior in Pakistan than in the United Kingdom this is considered to be more than outweighed by the benefit of your children returning...
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