R Belkevich v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | John Howell |
| Judgment Date | 03 May 2013 |
| Neutral Citation | [2013] EWHC 1389 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 May 2013 |
| Docket Number | CO/8090/2012 |
[2013] EWHC 1389 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
John Howell QC
(Sitting as a Deputy High Court Judge)
CO/8090/2012
Miss C Robinson (instructed by Lawrence Lupin) appeared on behalf of the Appellant
Miss K Olley (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
THE DEPUTY JUDGE: This is a claim for judicial review, initially lodged on 31 July 2012, impugning the failure by the Home Secretary to make a decision, or to provide a reasoned decision, under what is known as the "Legacy" Programme in response to representations made on 8 April 2011 and 30 June 2011. Permission to make that claim was granted by Neil Garland QC on 19 October 2012.
At that stage, the Treasury Solicitor had written, on 25 September 2012, stating that, if the claimant withdrew his claim with no order for costs, the Home Secretary would consider the previous submissions made and any further submissions which he made within one month; and that she would then reach a decision within 3 months of the making of the consent order or any further submissions. There then followed discussion between the parties about what was to be done. On 24 December 2012, the claimant offered to withdraw if the Home Secretary undertook to make a decision within 28 days, leaving the question of the costs to be dealt with on paper. The Home Secretary refused that offer on 25 January 2013, instead seeking 3 months in which to take a decision. Thereafter, the hearing of this claim was listed for today, 3 May 2012. The parties then agreed a timetable under which the Home Secretary would take a decision by no later than 2 April 2013. The decision was in fact communicated by a letter dated 21 February 2011: ("the decision letter").
In the decision letter, the Secretary of State considered for the first time a claim that the claimant's removal would be incompatible with his rights under Article 8 of the European Convention on Human Rights. Given that the Secretary of State had, so she assumed, already rejected an asylum and human rights claim in February 2004, the Secretary of State decided that, when taken together with the previously considered material, the Article 8 submissions did not create a realistic prospect of success on any appeal and, accordingly, she refused to treat them as a fresh claim. She also considered that the submissions made that returning the claimant to Belarus given his medical condition will be incompatible with Articles 3 and 8 of the European Convention of Human Rights also had no realistic prospect of persuading an immigration judge that his removal would be contrary to his convention rights; and that these submissions, accordingly, did not also constitute a fresh claim.
The Secretary of State also decided that the claimant should not benefit from any form of leave being granted under what is known as the "Legacy". The background to the "Legacy" is set out in the judgments of Burton J in R v Hakemi & Ors v Secretary of State for the Home Department [2012] EWHC 1967 (Admin) and Stephen Morris QC sitting as a deputy judge, in this court, in R (on the application of Mohammed v Secretary of State for the Home Department [2012] EWHC 3091 (Admin).
By the time of the decision letter, the claimant had been in the United Kingdom for 13 years and 5 months. Notwithstanding the weight that might otherwise be given to such a period of residence in this country under the "Legacy", the Secretary of State did not consider that the grant of any leave to remain was justified. Essentially, the Secretary of State relied in particular on the facts, as she saw them, that the claimant had failed to maintain contact with the Home Office; that he had failed to inform the Home Office of changes in his representatives; and that he had failed to report for much of this period, notably between the refusal of his asylum claim in February 2004 and April 2009; and that he had been working illegally from February 2004 to May 2010. In the Secretary of State's view, the claimant's ongoing presence in the United Kingdom was only maintained because he had circumvented immigration control.
In accordance with the agreement between the parties, the claimant accordingly filed an amended statement of facts and grounds dated 8 April 2013, impugning the decision letter. The claimant maintained his original complaint about the delay in dealing with his submissions in those grounds, but, recognising that that complaint might be thought academic, those amended grounds mainly attacked the decision letter.
In her amended grounds of defence dated 19 April 2013, the Home Secretary invited the court to dismiss this claim for judicial review, although she recognised (at paragraph [33]) that the decision letter contained an error of fact. Contrary to what the decision-maker had assumed, the claimant's solicitors, Lawrence Lupin, had gone on the record as his representatives in immigration matters in October 2001. Somewhat surprisingly, given that the amended ground of defence had stated the court would be invited to dismiss the claim not withstanding that error on the same day, 19 April 2009, the Treasury Solicitor wrote to the claimant's solicitor stating that the Home Secretary proposed to withdraw her decision and reconsider the claimant's further submissions within one month of the making of the consent order, if the claimant agreed. Instead, the claimant's solicitors wrote inviting the Secretary of State to take that further decision by Friday 26 April, so as to enable the hearing today to be effective. The Home Secretary declined to do so.
In a note submitted to the court dated 1 May 2013 in an attempt (so it was said) to avoid confusion about the Defendant's position Miss Katherine Olley, who has appeared on behalf of the Secretary of State, stated that:
"It was not possible to say with any certainty what the outcome of the case would be if that error were corrected. It is neither possible to say that the result would remain the same, nor that it would change. For that reason, the Defendant's view is that the decision should be retaken."
She also said, however, that:
"At the present time that decision stands."
The logic of the Defendant's position is simply this: the Home Secretary admits that she has made an error of fact in the decision letter and that it cannot be said that the decision would have been the same had the mistake not been made. It necessarily follows that the claimant is entitled to an order quashing it, given that the Secretary of State has not withdrawn it. Accordingly, I order that the Defendant's decision dated 21 February 2013 be quashed.
On behalf of the claimant, Miss Catherine Robinson also invited me to order the Secretary of State to grant her client indefinite leave to remain or alternatively, to order the Secretary of State to take a further decision by 21 May 2013 and to stay this claim.
Before addressing those matters directly, I must say something about the significance of the error which should have been manifest throughout to the Home Office from its own records and which, understandably underlies the submissions that Miss Robinson makes in support of the order she now seeks on the claimant's behalf.
The claimant was born in 1958. He is a national of Belarus, although the authorities in that country do not appear to accept that he is. He appears to have entered this country clandestinely in 1999. He has now been in this country for over 13 and a half years.
The claimant initially claimed asylum on 16 September 1999. Given the delay in dealing with that claim, he was permitted to undertake employment without the need to obtain any further permission on 21 March 2000, at least until a decision on his asylum claim was taken.
In 2001, he was asked to complete a statement of evidence form ("SEF"). It was returned on 13 September 2001. In it, he stated that his address was at 398 High Willesden, London NW10 2DY and that his representatives were J Cooper Solicitors.
On 18 October 2001, Lawrence Lupin solicitors informed the Home Office that they were now instructed by the claimant and asked for all correspondence dealing with claimant's immigration status to be addressed to them. That was noted on the Home Office's own records, as the Secretary of State now belatedly accepts.
The Home Secretary decided to refuse the claimant's claim for asylum after he had failed to attend a substantive interview on 4 February 2004. The letter inviting him to that interview was not addressed to the address in the SEF, but to 398 High Willesden Street. The claimant says that he never received it.
In the event, letters giving the reasons for refusal of his asylum and human rights claim; notice of his right to appeal; notice that he was liable to removal; and notice that his temporary admission was subject to reporting requirements were sent to his former solicitors, J Cooper solicitors, who were not then dealing with the matter. They were not sent to the solicitors then on the record, Lawrence Lupin. They were returned: "Not called for, addressee gone away." The Immigration Officer's Report, stating where these documents had been sent, did not suggest that they had been sent directly to the claimant. It stated that they had been sent only to his representative and indicated that the decisions had to be noted on the file as his whereabouts were...
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