R (Holub) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 20 December 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J1220-10 |
| Docket Number | Case No: C/2000/0463 & 6382 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2000 |
[2000] EWCA Civ J1220-10
Lord Justice Schiemann
Lord Justice Tuckey and
Sir Swinton Thomas
Case No: C/2000/0463 & 6382
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (The Honourable Mr. Justice Carnwath)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Jan Luba, QC and Mr. Duran Seddon (instructed by Tessa Anna Sempik, London, SW13 9RW) Solicitor for the Appellants
Mr. Nigel Pleming, QC and Ms. Jenni Richards (instructed by Treasury Solicitor, London, SW1H 9JS) for the Respondent
This is the judgment of the court. The Appellants appeal with this court's permission from the decision of Carnwath J. who, on 8th October 1999 dismissed their application for judicial review of the Secretary of State's decision not to grant them exceptional leave to remain in the United Kingdom.
Facts.
The Appellants are Polish. Their daughter Luiza was born in Poland on 14th November 1986. Her father entered the United Kingdom illegally in 1994 and subsequently claimed asylum. Luiza and her mother arrived in August 1995 and were joined as dependants to the asylum claim which was rejected by the Secretary of State the following month. Luiza's sister remained in Poland. A special adjudicator dismissed the Appellants' appeal and the IAT refused leave to appeal in March 1998. A claim for exceptional leave was then made on behalf of the Appellants on a variety of grounds, only one of which was pursued before the Judge in the proceedings for judicial review which were launched in August 1998 after the Secretary of State had set removal directions for the family's return to Poland.
The surviving ground relied on by the Appellants relates to the educational difficulties which Luiza might face in Poland if she now returned there. The challenge is to the Secretary of State's consideration of those difficulties and the effect of Article 2 of Protocol No.1 to the European Convention on Human Rights on his decision.
Luiza was at school in Poland until 1995 and since then has been at school in Scunthorpe where her parents have been living. She has done very well. The Head Teacher of the school she is now attending reports that if she continued her education in this country she could be expected to achieve to a very high level and would most probably gain a university place. Her mother teaches Polish at the Polish Saturday school in Scunthorpe which Luiza attends. As a result of this additional education Luiza achieved an A grade in Polish GCSE when she was only 11.
The case advanced before the Judge was that if Luiza returned to Poland she would be required to resume her education there where she left off. So she would be put into a class of nine year olds and given no opportunity to catch up. This was supported by two letters from a Mr. Traliszewski who describes himself as a consultant in Polish law and East European affairs. He said that the effect of this inflexible system would mean that Luiza would lose the opportunity of matriculation at the age of nineteen and thus the passport to higher education.
At the suggestion of Buxton LJ when he gave permission to appeal, further evidence has now been obtained about the Polish education system. If nothing else this evidence shows that the case advanced by the Appellants before the Judge was factually incorrect.
The Secretary of State has obtained evidence through the British Embassy in Warsaw from the Polish Ministry of Education and the Bureau for Academic Recognition and International Exchange, a government agency established at the beginning of 1999 which reports to the Ministry. Among other responsibilities the Bureau provides information on the Polish education system. Its deputy director, Mrs. Majdowska, considers that it is the primary source of such information in Poland. She says :
1. Luiza will not have to return to the grade she was (in) before leaving Poland; she will be admitted to the next grade after the one she has finished in England;
2. Since she is 13 1/2 now I suppose she will be admitted to the first grade of gymnasium (which starts after six years of primary school). Nevertheless it depends on the decision of the Director of the school she chooses: he has to consider if there aren't too many differences in the school programme
4. The fact that the child has been in a school in England for several years will not prevent her from taking the Matriculation exam at the age of nineteen, neither will it prevent her from accessing higher education (of course, she will have to pass an entrance exam or fulfil any other requirements necessary for the admission to a higher education institution).
The Appellants' solicitor has obtained statements from an ex-Polish teacher now living in London, Ms. Marciniak and a director of a group of schools in Poland near to the area to which the Appellants would return. They explain at some length how demanding the curriculum is in Polish schools and how much a child who has been abroad would have to catch up. However, they accept that it is for the director of the school to decide which class such a child should be placed in having regard only to that child's abilities. Whatever class that child is placed in the child may progress through the various grades if he or she is able to cope with the programme. A child returning from abroad would probably be put in a lower grade than his or her contemporaries but even then might have difficulties so might be kept down for a further year. The prospects of being able to matriculate at the normal age of nineteen were remote. Mr. Rudzinski concluded his statement by saying that he did not believe that a child in Luiza's position returning to education in Poland would stand any prospect of making up the lost curriculum time and therefore of successfully completing her education in the very formal and inflexible structure in Poland. This could only be achieved by supplementary private tuition of not less than seven hours tuition each week, principally in Polish language and history, the cost of which would be prohibitive.
The Secretary of State's decision to refuse the Appellants exceptional leave to enter has been maintained in a number of letters since July 1998. His latest letter to the Appellants' solicitors is enigmatically dated "October 2000" and responds to the new evidence. It says :
The Secretary of State has carefully considered the points you have raised I regret that he remains of the view that there remain insufficiently compelling or compassionate circumstances which would justify exceptionally allowing your client and his family to remain . What Ms. Marciniak and Mr. Rudzinski state is that her ability to follow the classes would be assessed and that she would be returned to a level at which she could cope with the subjects being taught . The Secretary of State is aware that, according to the evidence, your clients' daughter is an extremely bright child, who came to the United Kingdom with presumably little or no English, entered an education system with which she was unfamiliar yet has managed to perform very well. She has also maintained her Polish. In these circumstances there seems every likelihood that she has the ability, even if returned initially to a lower grade, to progress quickly and "catch up" with her own age group. There is no reason to believe that your clients' daughter would be unable to cope and every reason to believe otherwise . In every case in which a parent chooses to take their child abroad, the inevitable consequence is that the child will, on returning to the home country, have to go back into an education system with which they may be unfamiliar. There is nothing, therefore, unique or unusual here. It was your clients' choice to come to the United Kingdom and take their daughter out of the Polish education system and bring her here. If, as is claimed, her opportunity to access university education in Poland has been impaired this is not due to any deficiency in the Polish education system but to your clients' decision to come and remain in the United Kingdom for several years. It is clear that education will be available to your clients' daughter in Poland and it clearly cannot be said that she would be denied the right to education."
Issues.
Both parties are agreed that we should decide the appeal on the basis of the decision contained in this letter, taken to have been made after the Human Rights Act 1998 ( HRA) came into force. This is of course a different factual and legal scenario from the one in which the Judge made his decision. It also means that we are considering the matter as a reviewing court of first instance. This, as well as the fact that these are early days for the HRA, dictates caution. We must obviously decide this case but in doing so we...
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