R AMIRTHANATHAN v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 02 May 2003 |
| Neutral Citation | [2003] EWHC 1107 (Admin) |
| Date | 02 May 2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5132/2002 |
[2003] EWHC 1107 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Rabinder Singh Qc
(Sitting As A Deputy High Court Judge)
CO/5132/2002
MS JEGARAJAH (attended for hearing) and MS NANAYAKKARA (attended for judgment)(instructed by SRI & CO) appeared on behalf of the CLAIMANT
MS LAING (instructed by TREASURY SOLICITOR) appeared on behalf of the DEFENDANT
THE DEPUTY JUDGE: This is a claim for judicial review of the decision of the Secretary of State to detain the claimant on 6th November 2002. Permission to bring the claim was granted by Hooper J on 15th January 2003. The substantive hearing came before me initially on 28th March but was adjourned in order to allow the claimant to amend his grounds, after I enquired whether the Human Rights Act 1998 ( HRA) might be relevant to the case, to include express reliance on Article 5 of the European Convention on Human Rights (ECHR), as set out in Schedule 1 to the HRA. Fairness required that the Secretary of State should be given an adequate opportunity to meet the Article 5 argument and so I adjourned the hearing until 1st May. I am grateful to all counsel who have appeared in the case for their helpful written and oral submissions.
Material Facts
The claimant is a Sri Lankan national, who was born on 9th July 1978. He arrived in the United Kingdom on 17th August 1999 without documentation. He claimed asylum on arrival and was apparently granted temporary admission.
On 2nd May 2000, the claimant's asylum application was refused and he was refused leave to enter. The claimant exercised his right of appeal, and that appeal was dismissed by an adjudicator by a determination dated 3rd October 2000.
On 31st October 2000, the Immigration Appeal Tribunal refused leave to appeal.
On 12th March 2001, the claimant's representatives stated that he wished to make a fresh asylum claim.
On 5th June 2001, they made representations to the effect that his return to Sri Lanka would amount to a breach of his human rights. In a decision dated 31st January 2002, but not in fact served on the claimant until 6th November 2002, the Home Office refused the claimant's human rights claim (see the document starting at page 39 of the court bundle) and this generated a right of appeal by virtue of paragraph 25 of that letter.
On 31st October 2002, a letter was sent granting the claimant temporary admission, which is at page 35 of the court bundle.
On 1st November 2002, the claimant's solicitors replied. It is necessary for me to look at that letter, which is at page 36 of the court bundle:
"Thank you for your letter dated 31st October 2002 via fax …
"In that, you have informed our client to attend for a decision interview at your office on 6th November 2002.
"As you have mentioned in your letter that the interview is a decision interview we kindly request you to forward a copy of the decision that you have reached on our client's asylum claim.
"As you are aware our client's Human rights application dated 5th June 2001 and subsequent one stop notice dated 19th December 2001 are still pending consideration under [by] the secretary of state.
"If the secretary of state feels that our client's HRA [claim] should be refused then we remind you that Mr Edward [the claimant] has the right of appeal against such decision under your policy dated 19th July 2001.
"We therefore appreciate your reply before 6th November 2002."
On 3rd November 2002, the Home Office replied in turn to that letter (see page 37 of the court bundle). That letter stated:
"Further to your letter of 01.11.2002 we trust that you understand that the purpose of the interview is to serve the decision, thus we cannot provide you with a copy of the decision letter prior to the actual interview.
"Please ensure that your client attends."
On 6th November 2002, the claimant was interviewed and a letter refusing his human rights claim was served on him. He was also detained. Later the same day, his representatives wrote to the Home Office stating that he wished to exercise his right of appeal under Section 65 of the Immigration and Asylum Act 1999 (the 1999 Act), in other words on human rights grounds (see page 45 of the court bundle). The letter reads, so far as is material, as follows:
"In accordance with your policy dated the 23rd August 2001, our client is entitled to a right of appeal and our client wishes to exercise his right of appeal under section 65 of the Immigration and Asylum Act 1999. Please forward us the appropriate forms for us to complete.
"We would be grateful if you could cancel any removal directions set until a decision has been made on this representation."
Also on 6th November they wrote a second, lengthy letter requesting the claimant's release from detention (see the letter starting at page 46 of the court bundle). I do not need to read all of that letter but it is there for reference in case it needs to be referred to in the future. It will suffice if I draw attention in particular to the first full paragraph, in which reference is made to a telephone conversation on the evening of 6th November between the author of the letter and a Ms Askin of the Home Office, which continues:
"We explained to her that although our client's Human Rights claim is refused he is entitled to a right of appeal. We also explained to her that the Secretary of State has acknowledged in his refusal letter that our client is entitled to a right of appeal and we actually read the 25th paragraph of the Refusal letter to her. After explaining his legal position, we asked her the reason for detention. She said that they are going to remove the client. We asked her whether they have set any removal direction in this case and she replied no, but is trying to document the client."
On 7th November 2002, a brief letter was sent by the Home Office (see page 54 of the court bundle). This enclosed the papers which the claimant had to complete and return to the Home Office by 21st November 2002 if he wished to exercise his right of appeal against the Secretary of State's decision to refuse his human rights application. The letter concluded:
"The decision on your clients [sic] detention will be taken by the Chief Immigration [Officer] later today."
On the same day, as that letter indicated, the claimant's detention was reviewed but it was decided to continue it, and the facts were sent to his representative explaining the reasons, which appear at page 68 of the court bundle. I will quote this in full so far as it does not consist of formal parts:
"You have asked for the reasons why your client named above has been detained.
"Your client's asylum application has been refused, as has his HRA claim. It is noted that you intend on his behalf to exercise his right of appeal against this decision. However, we are currently pursuing the matter of arranging a Travel Document for your client, to be used if the appeal you propose fails. To this end, he will be interviewed on 14.11.02 by an officer of the Sri Lankan High Commission. I am not satisfied in the current circumstances that he would voluntarily attend the Sri Lankan High Commission for this interview.
"When this is done, and the appeal your client wishes to make is set in motion by your returning the documents sent to you, further consideration will be given to the situation of your client. Please be assured that his detention will be reviewed by senior officers on a regular basis."
Clarification was sought by the claimant's representatives by telephone, and there is before the court an attendance note of that conversation at page 69 of the court bundle. I will quote, so far as is material, from it. It records a conversation which took place at 3.55 pm on 7th November 2002 with a Mr Andy Paulston, an immigration officer at Waterloo. The attendance note shows that the claimant's representatives checked with Mr Paulston whether they could speak to the Chief Immigration Officer, but he said that the CIO was "not in his seat" and that he could assist them. The note continues:
"We asked him what does the fax means [sic]:
"Does this means [sic] he is detained to facilitate the Sri Lankan High Commission interview?
"He said that they have stated this very clearly in their fax that he will not voluntarily attend the Sri Lankan High Commission for interview.
"That means he is detained to facilitate the Sri Lankan High Commission interview?
"He asked me why are you trying to take it from my mouth?
"We told him it was not very clear in the fax and before we file a Judicial Review we want to clarify this?
"The officer confirmed 'Yes'."
On the same day, 7th November, the claimant's representatives wrote a further letter (at pages 70 and 71 of the court bundle), which referred to the Home Office's fax of 7th November at 1320 hours and the subsequent telephone conversation with Mr Paulston. It then, in effect, set out in summary the grounds on which an application for judicial review might be made. It was in substance a letter before claim.
The Home Office replied to that letter the next day, 8th November 2002, in a letter, which is at pages 73 and 74 of the court bundle. I will quote material parts of that letter:
"I am sure that you will not accept this view, but you can certainly understand how it might be held, that your client has consistently sought to take advantage of the asylum process to prolong his unlawful residence in this country …
"Were we to grant your client...
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