R Godwin Chaparadza v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Akhlaq Choudhury |
| Judgment Date | 24 May 2017 |
| Neutral Citation | [2017] EWHC 1209 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/379/2015 |
| Date | 24 May 2017 |
[2017] EWHC 1209 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Akhlaq Choudhury QC (Sitting as a Deputy High Court Judge)
Case No: CO/379/2015
Hugh Southey QC and Sara Anzani (instructed by Barnes, Harrild & Dyer) for the Claimant
Catherine Rowlands (instructed by Government Legal Department) for the Defendant
Hearing date: 27 April 2017
Judgment Approved
Akhlaq Choudhury QC:
A. Introduction
By this claim for judicial review, the Claimant, a Zimbabwean national, seeks to challenge the following acts/decisions of the Defendant:
a) The Defendant's failure to serve notice of a decision made in October 2011 in respect of an application to vary his leave to remain. The Claimant claims that the result of that failure is that his leave to remain continued by the operation of s.3C of the Immigration Act 1971 ("the 1971 Act") up to and beyond a period of detention to which he was later subject. I shall refer to this as "Ground 1";
b) The Defendant's refusals to treat his submissions in support of a subsequent asylum claim (which claim was rejected in 2013) as a fresh claim. The Claimant contends that these decisions are flawed in that they were based on an erroneous assumption that the Claimant's leave to remain had ended. I shall refer to this as "Ground 2"; and
c) The lawfulness of his detention from 11 April 2014 until 20 June 2014. The Claimant says that his detention could not have been lawful because he continued to have leave to remain pursuant to s.3C of the 1971 Act and he claims damages. I shall refer to this as "Ground 3"
The Defendant accepts that notice of the decision made in October 2011 was not given at the time. However, she contends that the making of the asylum claim in 2013 varied the earlier application to vary leave to remain so as to supplant the original purpose for seeking leave to remain. This meant that the decision on the asylum claim was all that was necessary and determinative of the Claimant's status. As such, the Defendant says, the failure to serve notice of the 2011 decision was irrelevant, the detention was not unlawful and no damages are due.
B. Factual Background
The Claimant entered the UK on 5 September 2004 with leave to remain as a student. His leave to remain was extended on a number of occasions, the last such extension being granted until 31 July 2011. On 27 July 2011, just prior to the expiry of his leave to remain, he applied to vary that leave ("the 2011 application"). The 2011 application was made outside the Immigration Rules to enable him to re-sit one of his exams so that he could complete a Masters-level degree in business studies. It is common ground that the 2011 application had the effect, by virtue of the operation of s.3C of the 1971 Act (as to which see below), of extending his leave to remain pending the decision on his application and any appeal against that decision.
The 2011 application was rejected because of a failure to disclose a material fact, namely that he had criminal convictions for driving under the influence of alcohol and other offences. Although that decision was apparently taken by the Defendant in October 2011 ("the 2011 decision"), it was incorrectly sent to the Claimant's college and not to his personal address. The Claimant was therefore unaware that the 2011 application had been rejected.
On 2 June 2013, the Claimant was arrested for driving without insurance and obstructing a police officer in the execution of his duty. Whilst in custody, a check on his immigration status revealed that he was an overstayer and he was served with notice that he was liable to removal. The Claimant then claimed asylum on the basis that he feared persecution if returned to Zimbabwe ("the asylum claim"). At his asylum interview conducted on 19 June 2013, the Claimant claimed that his father had died in 2003 after being beaten up by Zanu PF militias during a purge of opposition MDC supporters, that he had experienced problems with the Zimbabwean authorities himself, and feared that he would be persecuted and harassed if returned to Zimbabwe. When he was told that the 2011 decision had been sent to him he said that he had never received it.
The asylum claim was refused by the Defendant in a decision dated 2 July 2013 ("the 2013 decision"). The Defendant rejected the Claimant's claims of harassment by the Zimbabwean authorities and noted, amongst other matters, that he had visited Zimbabwe voluntarily at least five times since coming to the UK. The Claimant's appeal against that decision was rejected by the First Tier Tribunal on 11 December 2013. The Tribunal did not find his account credible. He was refused permission to appeal further and became appeals rights exhausted ("ARE") on 25 February 2014 following the Upper Tribunal's refusal to give permission to appeal.
On 11 April 2014 the Claimant was detained whilst reporting. On 25 April 2014, the Claimant made further submissions in support of his asylum claim. The Defendant, by a decision made on 6 May 2014, rejected the further submissions and refused to treat them as a fresh claim. A claim for judicial review was lodged on 5 June 2014 contending that the rejection of his further submissions was irrational, that there had been a failure to comply with notice requirements in respect of the 2011 decision and that his detention was unlawful.
The Claimant's detention ended on 20 June 2014 because the judicial review claim was considered to be a barrier to his removal and the claim had not been expedited.
C. Procedural background and the Scope of Permission to Amend
The Claimant was initially unrepresented when his claim for judicial review was lodged, although it would appear that there was some legal input in drafting the grounds of complaint. The claim challenged the same three acts/decisions of the Defendant identified in paragraph 1 above. It was expressly alleged that there had been a failure to comply with the Immigration (Notices) Regulations 2003 ("the Notice Regulations") in relation to the 2011 decision. In the Summary Grounds of Resistance, the Defendant maintained at that stage that there had been proper service of the 2011 decision.
Permission to seek judicial review was granted by Alex Bailin QC (sitting as a Deputy Judge of the High Court) on 4 February 2015. On 15 April 2015, the Defendant served her Detailed Grounds of Resistance, in which it was accepted that notice of the 2011 decision had been incorrectly sent to the Claimant's college. The 2011 decision appears to have been appended to the Detailed Grounds. However, the Detailed Grounds did not specifically address the arguments relating to the Notice Regulations.
The matter came on for hearing before Neil Cameron QC (sitting as a Deputy Judge of the High Court) on 15 October 2015. By then, the Claimant had obtained legal aid funding and was represented by Ms Sara Anzani. Not surprisingly, the Claimant's claim, as set out in Ms Anzani's skeleton argument, was formulated slightly differently from the original grounds of complaint. The hearing was adjourned. This was to enable clarification of three matters:
a) The first was the date when the Claimant became ARE – a discrepancy had arisen as to that because of a letter from the Upper Tribunal suggesting that he had become ARE on 14 April 2014. The significance of that, of course, is that his detention commenced before 14 April 2014, and, if his appeal rights were continuing, removal could not be said to be imminent. It was subsequently confirmed that the ARE date was in fact the earlier one of 21 February 2014;
b) The second matter to be clarified was the date when the Defendant claims the 2011 decision was served. The Claimant maintained that it had not been served;
c) The third and final matter to be clarified was the Claimant's grounds of complaint. The Claimant was given permission to amend his grounds so as to enable him "to formulate his case on when any s.3C leave rights were exhausted and whether any s.3C leave was terminated by the claimant making an asylum claim." This last point is of some significance as the Defendant contends that the grounds as now pursued go beyond the scope of that permission to amend.
Amended Grounds of Complaint ("the Amended Grounds") were duly served on 17 February 2016. The Amended Grounds sought to challenge the same three matters as before: (i) the failure to serve the 2011 decision in accordance with the Notice Regulations; (ii) the refusal to treat the further submissions in respect of asylum as a fresh claim; and (iii) the lawfulness of the Claimant's detention. It was expressly alleged that the detention was unlawful because of the "pending application from 2011" and the continuation of leave under s.3C of the 1971 Act.
The Defendant served her Amended Detailed Grounds of Resistance ("the Amended DGR") on 10 March 2016 and asserted that it was "very much questionable that the grant of permission extends to the amended grounds". However, only one matter appears to have been expressly identified as being beyond scope in the Amended DGR and that was the allegation that the failure to serve the 2011 decision rendered the fresh claim decision irrational.
Before me, the Defendant maintained that the Amended Grounds went beyond the scope of the permission to amend. However, it was not entirely clear which matters went too far. One matter specifically identified in the Defendant's skeleton argument is that the Claimant is now relying on the failure to serve the 2011 decision "as opposed to the initial challenge to the failure to make that determination, which was the issue for which...
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