R (HM (Malawi)) v Secretary of State for the Home Department

Hearing dates: 4 th June 2010

JUDGE GILBART QC:

INTRODUCTION

This matter concerns the issue of removal directions of the Defendant Secretary of State (“SSHD”) set for 24 ^th December 2009, which followed a decision letter of 21 ^st December 2009, whereby the SSHD, acting under paragraph 390 of the Immigration Rules HC 395, refused to revoke a deportation order made on 5 ^th November 2009. In that letter, the SSHD also certified under s 94(2) of the Nationality, Immigration and Asylum Act 2002 that the Claimant's human rights claim was clearly unfounded.

This judgement must deal to some extent with medical conditions which afflict the Claimant and his wife. Having regard to the decision in Z v. FINLAND 22009/93 [1997] ECHR 10 and to the Article 8 rights of both of them, it is right that they should not be identified by name. I therefore direct that their initials are to be used; HM (the Claimant) and AM (his wife). I will refer to her before her marriage as AG.

On 15 ^th February 2010, Mr Justice Nicol refused permission on the papers. The application was renewed orally. On 6 ^th April 2010 HH Judge Stewart QC, sitting as a deputy High Court Judge, granted permission, and identified two issues for the substantive hearing.

a. The closeness and genuineness of the Claimant's relationship with his wife and the reasonableness of the location to Malawi as set out in a letter from AM's General Practitioner of 16 ^th December 2009

b. The relevance and application of the case of Omojudi v UK 1820/08 [2009] ECHR 1942.

On the 3 ^rd June 2010 (the day before the hearing) the SSHD issued a further decision, in response to a further application of 19 ^th March 2010 asking for a reconsideration of the Human Rights Claim.

HISTORY

HM, who originates from Malawi, and was born in September 1983, came to this country in 1996 for 6 months, and was admitted on a visa. He was admitted again in 1999. He has remained in this country since that date. He has therefore lived in the UK since he was almost 16.

On 28 ^th February 2001 he was convicted at the Juvenile Court of possession of an offensive weapon, and using threatening abusive insulting words or behaviour contrary to the Public Order Act, and placed on probation for 12 months. He had been served with papers for his removal as an overstayer. An appeal against that decision was allowed on 19 ^th September 2002, on the basis that his rights under Articles 3 and 8 of the European Convention would be infringed. On 17 ^th February 2003, he was convicted before the Magistrates of driving a vehicle with excess alcohol, disqualified from driving for 12 months and given a 12 months conditional discharge. He also received a sentence of a nominal 1 day's imprisonment for a failure to surrender to custody (answer his bail). On 14 ^th April 2003, he was convicted of driving with excess alcohol, disqualified driving and related offences. He was disqualified for 3 years and made the subject of a community rehabilitation order for 18 months.

On 6 ^th June 2003 he was convicted before the Magistrates of attempted burglary and theft, otherwise than in a dwelling, and conditionally discharged for 12 months.

On 24 ^th March 2004 he was given discretionary leave to remain within the UK. It follows that since at least March 2004 he has been lawfully resident in the United Kingdom.

On 22 ^nd July 2005 he was convicted by the Magistrates of causing criminal damage, given a community rehabilitation order for 12 months and ordered to pay £100 compensation and costs. On 4 ^th January 2006, that order was revoked and a conditional discharge was substituted.

On 5 ^th February 2007 he was convicted before the Magistrates of driving with excess alcohol, and sentenced to a community order for 18 months and disqualified for 4 years.

On 8 ^th July 2008, he was convicted at the Crown Court upon his guilty plea of possession of an identity document with intent. That document was a passport belonging to his brother, used by HM to get a driving licence. He was sentenced to a period of 9 months imprisonment, and the judge made a recommendation for deportation. His sentencing remarks included the following

“…..You were given the opportunity of a community sentence and……..it is suggested that you gained great benefit from that…………..there was an application made to the court to discharge the remainder of the supervision period and that was granted. Whilst all that is going on, and you are an intelligent person, you are scheming to get back on the road so that you can become a further nuisance, putting other people at risk by driving, because that was clearly your intention, and driving without insurance and probably driving with excess alcohol, one does not know. That is premeditated, it was planned and it is indicative of your attitude towards the society in which you say you wish to live.

You have been here since 2001 (sic). You were first convicted in 2001 of a serious offence involving weapons. You have been before the Court on seven subsequent occasions involving 17 offences. Whatever may be said about your contribution through your voluntary work, it does not in any way provide comfort for the way in which you are behaving within the society that you say you want to live in.

This matter is so serious, having regard to its premeditated state, that it will attract an immediate custodial sentence. You will go to prison for 42 weeks. That is the custodial term. You will serve one half of that in custody and you will then be released and the remainder of the sentence will be suspended. (My italics) However, I am also making a recommendation to the Home Secretary that you be deported because the time you have given this country has not been positive or productive and for those reasons no doubt the appropriate papers will be served upon you whilst you are serving the custodial part of your sentence.”

Perhaps unsurprisingly the SSHD acted upon that, and took the relevant steps to deport him. As will become apparent, that recommendation was not made the subject of an appeal to the Court of Appeal, Criminal Division, although the judge's approach to a recommendation for deportation was not consistent with decided Court of Appeal Authority. It is also worth noting that it was passed about 3 weeks before the relevant provisions of the UK Borders Act 2007 came into force. For completeness, the remainder of the term could not have been suspended. What the judge was referring to was the effect of a release on licence at the end of the custodial part of the sentence.

Deportation papers were served on 17 ^th October 2008, and representations made. On 15 ^th December 2008, the SSHD decided to act on the court's recommendation. In doing so, he stated in the context of the Article 8 section of the letter that

“A decision will only lead to interference with private/family life where there are insurmountable obstacles to family/private life being continued elsewhere.”

As will appear below it was rightly accepted before me by counsel for SSHD that that was not the relevant test in an Article 8 case, and has been disapproved of by the Court of Appeal. After considering his family ties, the letter also rejected the claim of the Applicant's that he was in a substantive relationship with AG, and rejected his claim that deportation would interfere with his family or private life. The SSHD also rejected the claim then pending for further leave to remain.

On 29 ^th April 2009 his appeal was heard before the Asylum and Immigration Tribunal (AIT), and dismissed by decision of 12 ^th May 2009. Applications for reconsideration under section 103A of the Nationality, Immigration and Asylum Act 2002 (as amended) were dismissed on 4 ^th June 2009, and a renewed application to the High Court was rejected on 14 ^th August 2009.

The Tribunal, under the heading of Article 3, concluded that medical facilities and medicines for the purposes of treating HM's conditions were available in Malawi and that he would have family support. It adopted that conclusion for the purposes of its Article 8 assessment. It addressed the effect on his removal on others, including his mother, who lives in the UK. It concluded that he could maintain his ties with family members who would remain in the UK by means of telephone calls, letters cards and visits by them.

However it rejected the claim that he had a close relationship with Ms AG as she then was. The Tribunal accepted that she required continuous medication but stated “enquiry seemed to suggest that she could receive medical treatment” were she to move to Malawi. Although the AIT's decision is a full one on other aspects of his case, the only note of any evidence on this relates to her evidence before the Tribunal that

“She had spoken to her own doctor and to “other people” about conditions in Malawi and whether she could herself be treated. Her enquiries revealed that such medication was available. But must be paid for (sic). Her understanding was she could get the drug intake for her own condition, but...