R (BA (Nigeria) and another) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 23 May 2008 |
| Neutral Citation | [2008] EWHC 1140 (Admin) |
| Docket Number | Case No: CO/11595/20077 and CO/5121/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 May 2008 |
[2008] EWHC 1140 (Admin)
THE HON MR JUSTICE BLAKE
Case No: CO/11595/20077 and CO/5121/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. R. Husain and Mr. R Toal (instructed by Wilson & Co)) for Etame and
Mr. R. Husain and Ms. R. Kotak (instructed by Turpin & Miller) for Anirah
Ms. E. Laing QC (instructed by the Treasury Solicitor) for the Defendants
Hearing date: 18 th April 2008
Mr. Justice Blake
Introduction
These two applications for judicial review have been heard together because they raise a common issue of law of some general importance in asylum and human rights appeals. Both claimants applied to the defendant Secretary of State to have deportation orders made against them revoked on asylum or human rights grounds. These applications were rejected. Both had previously made asylum or human rights claims that were the subject of adverse determinations and unsuccessful appeals before the deportation orders were signed. Both claim to have the right of appeal with suspensive effect (that is to say an appeal from within the United Kingdom) as a result of this immigration history and the proper meaning of s. 92(4)(a) of the Nationality Immigration and Asylum Act 2002.
The case of Anirah
In the case of Mr. Anirah this is the sole issue. He is a Nigerian national who entered the United Kingdom as a visitor in 1988, was given leave to remain as a student, married a British citizen in August 1991 and was granted indefinite leave to remain on the basis of that marriage in May 1995. There are four children of that marriage aged between 10 and 16. He undoubtedly has resided lawfully in this country for a long time and during that residence has established a home, family and private life that deserves respect within the meaning of Article 8 European Convention on Human Rights (ECHR).
However on the 2 nd March 2001 he was convicted of a conspiracy to import into the country a large quantity of Class A drugs and was sentenced to 10 years imprisonment. On the 20 th May 2005 the Secretary of State decided to deport Mr. Anirah on grounds conducive to the public good pursuant to s. 3(5) Immigration Act 1971 and the immigration rules applicable to such decisions: HC 395 paragraphs 362 to 364. Mr. Anirah appealed against this decision and contended amongst other things that deportation at the end of the lengthy prison sentence he was serving for his criminal conduct was an interference with his right to family life and was not justified in the broader interests of the community applying Article 8(2) ECHR. By the time of the appeal the marriage had broken down and the wife had instituted divorce proceedings. Whilst she was willing for the children to make indirect contact with the claimant through letters, phone calls and emails she was not prepared to take them to visit him in prison whilst he was serving his sentence.
The Immigration Judge (IJ) dismissed the appeal on the 11 th July 2005 and the AIT upheld this decision on 18 th December 2006. In due course that appellate decision became final and can not be challenged collaterally by judicial review. Thereafter a deportation order was signed against him.
After further judicial review proceedings that do not need to be recited, the Secretary of State agreed to consider further submissions put forward in June 2007. The submissions sought a revocation of the deportation order before it had been implemented. Those submissions were concerned with the human rights claim and argued that the IJ had applied the wrong test of exceptionality rather than the correct one of proportionality and relied on the continuing family life between the claimant and his children. Those submissions were rejected on the 19 th November 2007. The defendant refused to revoke the deportation order. In due course directions for removal to Nigeria were set. On the 27 th December 2007 this application for judicial review was made on the basis that the claimant had a further right of appeal.
Although the claimant submits that in rejecting his submissions the Secretary of State herself erred in law by failing to find that family life was established between the claimant and his children, he does not allege that the issues, the evidence or the supporting argument advanced in the June 2007 representations were sufficiently different to amount to a fresh human rights claim.
The case of Etame
Mr. Etame is a citizen of Cameroon who entered the country clandestinely on a date unknown and applied for leave to remain on asylum grounds in May 2005. This application was rejected in July 2005 and there was no appeal against it. Removal directions were set but before they could be implemented the claimant was prosecuted for criminal wrongdoing.
On the 20 th February 2006 he was sentenced in the Crown Court to twelve months imprisonment concurrent on his plea of guilty in the Magistrates Court to three inter-related offences of having a false instrument (a Belgian passport) with intent, using the same false instrument and obtaining a pecuniary advantage (employment) by a false representation that he was entitled to work in the United Kingdom.
As a result of this conviction a decision was taken to make a deportation order on grounds that his deportation would be conducive to the public good, rather than merely remove him as someone who had been refused leave to enter. One essential distinction between removal and deportation is the fact that when a deportation order is made a person is precluded by statute from re entering the United Kingdom until the order is revoked.
The claimant appealed against the decision to make the order. His grounds of appeal alleged persecution and ill treatment in Cameroon on the basis of his political opinions and activities and also because of sexual activity as a homosexual.
The Tribunal rejected his appeal on the 14 th August 2006. This decision became final after a request for reconsideration was dismissed and on the 6 th December 2006 the deportation order was signed against him requiring him to leave the United Kingdom and preventing his return here.
Thereafter fresh solicitors acting for the claimant submitted further argument and evidence relating to his treatment as a homosexual in Cameroon and the risks he would face on return there. These representations were rejected on the 27 th March 2007 and again on the 25 th May 2007. The latter decision went on to explain that the representations did not amount to a fresh claim; the deportation order signed would not be revoked, and there was no in-country right of appeal against this decision as the claimant had not made a fresh claim for asylum or human rights protection.
The claimant nevertheless sought to enter an appeal with the AIT, but on the 11 th June 2007 an immigration judge decided that the decision of the 25 th May 2007 was not an appealable decision. At a renewed application for permission in September 2007 the claimant obtained permission to bring judicial review proceedings against both the AIT and the Secretary of State arguing that he had a right of appeal against the refusal to revoke the deportation order, that such a right was for an in-country appeal, and that in any event the representations made amounted to a fresh claim for protection. The Secretary of State subsequently accepted that the decision in question was an appealable but not that such an appeal could be made from inside the UK. On the 28 th May 2008 the Secretary of State gave further reasoning in support of her contentions.
The question whether there was a fresh claim to refugee or human rights protection is a distinct issue in the case of Etame that does not arise in the case of Anirah. It will be considered separately after the resolution of the common issue.
The right of appeal
The general statutory provisions about a right of appeal in immigration cases are to be found in s. 82 (1) NIAA 2002 that provides a right of appeal to the AIT “where an immigration decision is made in respect of a person”. S. 82(2) then sets out what is meant as an immigration decision. The list of such decisions includes refusal of leave to enter, refusal of leave to remain if the result is that a person has no leave to enter or remain, a decision that a person is to be removed, a decision to make a deportation order and a refusal to revoke a deportation order. In both these cases it is now agreed that there were refusals to revoke a deportation order and thus a separate immigration decision had been made following the original decisions to make a deportation order and in the case of Mr. Etame, the earlier decision to refuse leave to enter.
Section 84 of the 2002 Act provides that where there is a right of appeal the grounds of appeal may include a claim that removal of the appellant would be contrary to the UK's obligations under the Refugee Convention and that the decision is contrary to s. 6 of the Human Rights Act 1998.
Mr. Husain who appears for both claimants observes that there will be many cases where a person is the subject of more than one immigration decision during a period of a single stay in the United Kingdom. Where there is more than one immigration decision Parliament has made distinct provisions to enable repeated claims to be certified and further rights of appeal to be curtailed or...
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