R (Boroumand) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson |
| Judgment Date | 17 February 2010 |
| Neutral Citation | [2010] EWHC 225 (Admin) |
| Docket Number | Case No: CO/3202/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 February 2010 |
[2010] EWHC 225 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before : The Honourable Mr Justice Beatson
Case No: CO/3202/2009
MR H. SOUTHEY and MR G. HODGETTS (instructed by Paragon Law) for the Claimant
MR T. EICKE (instructed by Treasury Solicitors) for the Defendant
Hearing at Birmingham Civil Justice Centre on 8 December 2009
Further written submissions received on 19 and 25 January 2010
Mr Justice Beatson:
The claimant is a citizen of Iran whose application for asylum was refused and whose appeal rights were exhausted by 17 March 2005, but on 5 April 2007 the Tribunal allowed his appeal against the Secretary of State's decision to make a deportation order against him. The Tribunal decided that, there was a real risk that, if returned to Iran, he would face the death penalty and that returning him would put the United Kingdom in breach of its obligations under Article 1 of Protocol 13 of the European Convention on Human Rights (“the ECHR”). Accordingly, deporting him would be unlawful under section 6 of the Human Rights Act 1998. In the light of the decision of the Tribunal, on 24 May 2007 the claimant was granted discretionary leave to remain in the United Kingdom for six months until 24 November 2007. That leave has since been renewed for further periods of six months.
On 17 November, shortly before his initial six months leave was due to expire, the claimant made a further application for leave to remain. He maintains that he is entitled to be granted “subsidiary” or “humanitarian” protection pursuant to Article 2 of Council Directive 2004/83/EC (“the Directive”) and paragraph 339C of the Immigration Rules (HC 395), and that under current policy should be granted leave to remain for five years rather than for periods of six months. His application was rejected in a decision made on 17 November 2008 and maintained on 18 February 2009. The Secretary of State did so on the ground that the claimant is excluded from entitlement to humanitarian protection because of his conviction for a “serious crime”, causing grievous bodily harm with intent, for which he was sentenced to three and a half years imprisonment at the Crown Court in Nottingham. This judicial review, launched on 2 April 2009 challenges that decision. On 15 June His Honour Judge Purle QC granted permission on the papers.
By the date of the hearing, there were only two issues. The principal issue is whether the Secretary of State is either required or entitled to exclude the claimant from humanitarian protection and the grant of five years leave to remain although he did not raise the question of exclusion from humanitarian protection in the context of the claimant's appeal against the decision to make a deportation order and the Tribunal did not consider this issue. I refer to this as “the exclusion from humanitarian protection” issue.
The second issue is whether the Secretary of State's decision to grant the claimant only six months discretionary leave to remain is a disproportionate interference in his private life under Article 8 of the European Convention because of the difficulties a person with such leave has, for example, in obtaining employment and opening a bank account, and because he cannot travel outside the United Kingdom without losing his status. Mr Southey, on behalf of the claimant, submitted that the disproportionality arises because the delay in determining applications to extend such leave will leave a person in the position of the claimant without status and documentation for considerable periods of time. He relied on the fact that it took the Secretary of State a year to deal with the claimant's application for an extension of his leave to remain. I refer to this as “the proportionality” issue.
Initially the application for judicial review also challenged the legality of the Secretary of State's policy regarding exclusion from humanitarian protection and the application of that policy in this case. It was submitted that the claimant's conviction for causing grievous bodily harm with intent did not amount to a “serious offence” and that the policy unlawfully construed “serious crime” by reference to a sentence of more than 12 months imprisonment: see [43]. In the light of a further decision by the Secretary of State contained in a letter dated 23 October 2009 these grounds were not pursued at the hearing. But the issue did not entirely disappear. Mr Southey accepted the decision in that letter that the claimant is excluded from humanitarian protection decision in this letter (see [21] – [22] below) is not Wednesbury unreasonable but submitted that it would have been open to the Tribunal to conclude that he was not. Mr Eicke, on behalf of the Secretary of State, submitted that it would not.
The evidence before me consists of statements by the claimant and Mr Lilley-Tams, a trainee at the claimant's solicitors both dated 26 November 2009, and one dated 4 December by Mr Welsh of the United Kingdom Border Agency's Criminal Casework Directorate. Mr Welsh has annexed two statements made on behalf of the United Kingdom Border Agency in another case to show how a person in the claimant's position can demonstrate to an employer that he is entitled to work. They are by Shola Akinyamojo (dated 26 February 2009) and Mr Forshaw, Assistant Director of the Agency (dated 8 September 2009). The second also deals with the policy for handling requests to travel by those in the claimant's position. Mr Lilley-Tams has annexed five email responses from other practitioners about the time it takes the Secretary of State to make decisions for extensions of discretionary leave.
The Factual Background
The claimant entered the United Kingdom clandestinely on 8 June 2004 and was arrested. He applied for refugee status on the ground that if he returned to Iran he risked being executed because he had been sentenced to death in 2000 for the murder of a man in 1999. The claimant accepts he was involved in an affray that resulted in a person being killed. However, he maintains his conviction was obtained on the basis of the confession obtained after he had been tortured, and that apart from the confession there was insufficient evidence against him.
The claimant's application for asylum was refused on 12 August 2004. The letter stated that the claim for protection under Article 3 of the ECHR was treated as a claim for humanitarian protection. The claimant appealed and the appeal was dismissed on 9 March 2005. The Adjudicator generally accepted the claimant's evidence that he was involved in an affray in which a person was killed (paragraph 37), but rejected the claimant's allegation that he had been tortured: paragraphs 36 and 43. The claimant did not appeal against this decision. Nor did he make any other claim for protection.
By the time his asylum appeal was dismissed, the claimant had been charged with attacking another applicant for refugee status living in the same hostel. He attacked the man with a knife with a nine-inch blade and inflicted very serious injuries. This attack led to the conviction and sentence of three and a half years imprisonment for causing grievous bodily harm with intent to which I have referred. The conviction and sentence were on 24 June 2005
When sentencing the claimant, the judge observed that, although he had no previous convictions in the United Kingdom, he was here because he left Iran “having been convicted of murder there, using a knife on somebody” and “this is not the first time you have committed serious violence using a knife”. This was a reference to the conviction in Iran for murder for which the claimant was sentenced to death.
In a letter dated 9 October 2006 the Secretary of State notified the claimant that she had decided to deport him to Iran on the basis that his deportation would be conducive to the public good. The letter relied on the conviction for malicious wounding, and stated that there was no record of any appeal against the conviction or sentence and that the Secretary of State was satisfied that deportation would not breach Article 8 of the ECHR and the Human Rights Act 1998. The letter did not say that, if the conclusion regarding the 1998 Act was wrong, the claimant would not be entitled to humanitarian protection. It did say that the claimant had not sought to make out a case that the Secretary of State should exercise her discretion not to deport him.
The claimant appealed against the decision to deport him. He relied on both the Refugee Convention and the ECHR. The appeal came before a two-judge panel of the Tribunal. It promulgated its decision dismissing the appeal on 22 December 2006. The Home Office Presenting Officer argued that the Claimant was excluded from humanitarian protection by reason of his conviction in the United Kingdom. Mr Eicke was not able to say why the issue was raised but submitted that it was not relevant to the issues under appeal. The Tribunal made no express finding regarding humanitarian protection. Mr Southey suggested this was because it had concluded that deportation would not violate the ECHR.
The claimant sought reconsideration of the Tribunal's decision. Reconsideration was ordered on a number of grounds. The Tribunal which reconsidered the appeal stated (paragraph 10) that, in the light of AH (Scope of s. 103A reconsideration – Sudan) [2006] UKAIT 0038, the proceedings before it were a...
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