R (FM) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Christopher Symons Q.C. |
| Judgment Date | 10 June 2010 |
| Neutral Citation | [2010] EWHC 1321 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/14182/09 |
| Date | 10 June 2010 |
[2010] EWHC 1321 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr Christopher Symons Q.C.
(Sitting as a Deputy Judge of the High Court)
Case No: CO/14182/09
Michael Harris (instructed by Beemans solicitors) for the Claimant
Brendan McGurk (instructed by the Treasury Solicitor)
Hearing date: 27 th May 2010
Christopher Symons Q.C.:
Introduction
This is an application for Judicial Review of a decision of the Defendant contained in a decision letter dated the 18 November 2009. That decision was supplemented and further explained by a letter of the 5 March 2010. The application is brought on behalf of the Claimant herself and also directly affects her young daughter, Tionge. Permission was refused on paper by Wyn Williams J. on the 18 December 2009 but was granted at an oral hearing of the renewed application by H.H. Judge Thornton Q.C. on 10 th February 2010.
By the decision referred to above the Secretary of State declined to accept that the Claimant's submissions, on why she and her daughter should remain in the United Kingdom, amounted to a fresh claim. Before I turn to the arguments advanced it is necessary to set out the history of this matter.
The Immigration History
The Claimant is now aged 32 and is a national of Malawi. She arrived in the United Kingdom on 3 May 2003 with her daughter, Tionge Mhango, who was born on 29 October 1999 and is therefore now 10 years old and was 3 when she was brought to the United Kingdom. At the time of their entry the Claimant's husband was in the United Kingdom on a student visa which was due to expire on 31 October 2007. The Claimant was given leave to remain also expiring on 31 October 2007. The Claimant separated from her husband in July 2006. Her husband did not seek to renew his visa on its expiry (although it was later renewed in 2008). Thus the Claimant had no leave to remain as a dependent and did not initially take any steps to regularise her position in the United Kingdom on the expiry of her visa.
On 25 March 2008 the Claimant claimed asylum. At that stage she and her daughter had been in the country a little under 5 years. Her asylum application was rejected on 21 May 2008 and she then appealed to the Asylum and Immigration Tribunal. During the course of the hearing the Claimant made a number of allegations to the effect that she and her daughter would be at risk if they returned to Malawi but these allegations were not accepted by the learned Immigration Judge and on 21 August 2008 he rejected the appeal. The effect of the Judge's decision was that he did not accept that the Claimant was a credible witness in relation to those matters.
An application for asylum was made by Tionge in her own right on 11 February 2009 but that claim was refused and certified under section 96(2) of the Nationality, Immigration and Asylum Act 2002 on 30 July 2009. While an application was made to have that decision judicially reviewed in the Scottish Court of Session that claim was not pursued and was withdrawn on 29 September 2009.
Further submissions were made by the Claimant by letter of 29 October 2009 and it was in response to those further submissions that the Secretary of State issued the decision letter of 18 November 2009.
Other relevant history
After the separation from her husband in July 2006 the Claimant and her daughter lived in their own accommodation. Tionge had started her education at the Eardley Primary School in Streatham in September 2003 and she continued at that school until she and her mother moved to Glasgow in early 2007. In March 2007 Tionge started school at Dalmarnock Primary School. She moved to St. Maria Goretti Primary School in Glasgow in October 2008. It is to Tionge's credit that she appears to have done well at all her schools and fitted in well with other children.
It is also apparent from letters which were before the Secretary of State and before me that the Claimant has fitted in well in the community in Glasgow and is a well respected citizen and she and her daughter have made many friends in the area.
The Claimant's letter of 12 October 2009 and the Decision letter of 18 November 2009
In the letter of 12 October 2009 those representing the Claimant drew the Secretary of State's attention to a considerable number of testimonial letters concerning both the Claimant and her daughter and enclosed copies. The letter focussed on the position of Tionge and enclosed her school reports and other materials. On the second page the letter continued:
“We, in particular, wish you to consider the child Tionge Precious Mhango's circumstances. She has been here for the majority of her life and can only remember life in the United Kingdom. She has been educated here, having attended previously a primary school in England … before moving to Glasgow… The child has been educated here and has settled into life in the United Kingdom. The child cannot speak any language apart from English. She cannot speak Chichewa, the native language of Malawi, or any other spoken language there. The child therefore would encounter extreme difficulties in an educational, social and developmental capacity if she were to be forcibly returned to Malawi. We would submit it would be unduly harsh to remove the child from her settled environment and from a country which she has been a part of for all the parts of her life she can remember. Consequently we would submit that strong consideration should be given to the child's position when considering both forms and Tionge's immigration case.
We would submit that Discretionary Leave applies in this case, the child having been in the United Kingdom since, in effect, 2003.”
In the decision letter of 18 November 2009 the Secretary of State set out the effect of paragraph 353 Of the Immigration Rules (HC 395, as amended by HC 1112) relating to fresh claims. The letter stated that:
“The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content had not already been considered; and taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
The letter then set out the list of documents which had been sent to the Secretary of State and continued:
“It is accepted that none of these documents has been considered previously. The question is therefore whether, when these documents are taken altogether with previously considered material, they create a realistic prospect of success. The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an Immigration Judge, applying the rule of anxious scrutiny, thinking your client will be exposed to a real risk of persecution on return… The points raised in your submissions have not previously been considered, but taken together with the material which was considered in the appeal determination of 21 August 2008, they would not have created a realistic prospect of success.”
That passage was rightly criticised because it was not the risk of persecution point that was really engaged. The point that had been fairly and squarely raised in the letter of 12 October was whether the removal of Tionge from her settled environment was an unlawful interference with her rights and in particular the right to private life under Article 8. However it was apparent from the rest of the letter of 19 November that this point was well in mind and was addressed. It was noted that Tionge was making good progress at school and had adapted to 3 different schools and would therefore be able to adapt well and make good progress in school in Malawi. It was pointed out that she was sufficiently young to adapt to life back in her home country. Under the heading “Strength of connections with the United Kingdom” the letter said:
“Regard has been had to the strength of your clients' connections in the UK. It is noted that Tionge Mhango has attended school for much of her time in the UK. However, as outlined above, it is considered that your clients' ties to the United Kingdom are not sufficiently compelling to justify allowing them to remain in the UK.”
Following that letter removal directions were set for 23 rd November 2009 and these proceedings were launched on that day. Following the decision at the oral hearing for permission, and as a result of some comments of the learned Judge, the Secretary of State issued the letter of 5 March 2010. That letter set out in paragraph 10 the correct basis for the claim. Having rejected any suggestion that the Claimant's removal would interfere with family life (since the intention was they would be removed together) it went on:
“It is also accepted that your client and her daughter may enjoy some degree of private life in the United Kingdom, and therefore their removal will interfere with that private life. However, as detailed below, it is considered that the removal is in accordance with the law and in pursuit of a permissible aim. The question therefore remains whether or not the interference is proportionate to that permissible aim.”
The letter went on at paragraph 33:
“The decision to remove your client and her daughter is in order to protect the wider interests and rights of...
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R FM v Secreatary of State for the Home Department
...amount to a fresh claim. 2 The judge set out the relevant immigration history in some detail in his judgment dated 10 June 2010 ( [2010] EWHC 1321 (Admin)). For present purposes it is sufficient to note that the applicant and her daughter, T, who was born on 29 October 1999, have both been ......