R Jawhar Karwan Rahim v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr C M G Ockelton |
| Judgment Date | 13 September 2013 |
| Neutral Citation | [2013] EWHC 2794 (Admin) |
| Date | 13 September 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/12678/2011 |
[2013] EWHC 2794 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr C M G Ockelton, VICE PRESIDENT OF THE UPPER TRIBUNAL (SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/12678/2011
Mr Paul Turner (instructed by Barnes Harrild & Dyer Solicitors) for the Claimant
Mr Matthew Barnes (instructed by The Treasury Solicitor) for the Defendant
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr C M G Ockelton, VICE PRESIDENT OF THE UPPER TRIBUNAL (SITTING AS A DEPUTY HIGH COURT JUDGE)
Mr C M G Ockelton, VICE PRESIDENT OF THE UPPER TRIBUAL (SITTING AS A DEPUTY HIGH COURT JUDGE :
This is an application for judicial review. Permission was granted by Mr Jeremy Stuart-Smith QC, sitting as a Deputy Judge of this Court. The Claimant challenges the Defendant's decision of 13 September 2011 granting him three years discretionary leave to remain and the Defendant's failure to grant him indefinite leave to remain.
The Claimant's Immigration History
The Claimant is a national of Iraq, born there on 1 July 1983. On 20 March 2003 he came to the United Kingdom. He entered illegally and claimed asylum. The Secretary of State refused his claim on 19 July 2006 and made a decision to give directions for his removal as an illegal entrant. The Claimant appealed against that decision. His appeal came before an Immigration Judge in September 2006. The Immigration Judge heard evidence from the Claimant: the Defendant was not represented before him. The Immigration Judge noted that he had given various inconsistent accounts of the events leading to his decision to leave Iraq, which was said to have taken place shortly before his departure in 2003. The Judge concluded that the Appellant before him had "deliberately decided to tell a completely different story in his asylum interview and in his later statement", and that he "completely lacks credibility". His appeal rights were exhausted by the end of October 2006. He made further representations to the Secretary of State by letters in 2007, 2008 and 2009. On 22 September 2009 the Secretary of State responded to all those representations, concluding that they did not give any good reason for reversing the previous decision and the conclusion of the Immigration Judge, and that the submissions did not amount to a "fresh claim" within the meaning of paragraph 353 of the Statement of Changes in Immigration Rules, HC395. the letter concluded by saying that it followed that the Claimant had no lawful basis for staying in the United Kingdom and that he should make arrangements to depart. There was no challenge to that decision, nor was there any suggestion that the Secretary of State had an obligation to make an earlier decision on the various further representations that had been made in the period since the dismissal of the Claimant's appeal.
On 8 October 2009 removal directions were set. There was no challenge to the decision to remove the Claimant: indeed he applied for Assisted Voluntary Return, but that application was rejected because of the terms of that scheme.
On 15 October 2009, in accordance with the directions, the Claimant was removed to Iraq, but on arrival there it was discovered that the Iraqi authorities would not accept him. He was returned to the United Kingdom on 16 October 2009, and was detained for a short period before being granted temporary admission.
Some time in the spring of 2010, the Claimant left the Untied Kingdom. He hid himself in a lorry in order to travel to Belgium, entering both that country and, apparently, France en route, unlawfully. He has said that the purpose of his journey was to claim asylum in Belgium. There is no doubt that he voluntarily and unlawfully travelled to Belgium: he was returned by the Belgian authorities under Dublin II arrangements on 19 June 2010. He has, however, never been prepared to give full details of this trip. He has consistently said that he departed the United Kingdom in March, but it appears that he was seen by a doctor and subsequently a psychiatrist on 18-19 May in the United Kingdom, although on 28 May 2010 his social worker informed the Secretary of State that the Claimant had left the United Kingdom. On 11 June 2010, however, (well before his Dublin II return) he telephoned an officer of the Secretary of State, saying that he was afraid to comply with his reporting conditions in case there was a further attempt to remove him. It does not appear from the minute that he admitted being outside the United Kingdom (and therefore unable to report without making a further unlawful entry) at the time that the call was made. His claim to asylum in Belgium does not appear to have been made until shortly before his removal from that country. I have been given no reason to suppose that the information given by his social worker was incorrect at the date it was given.
Nothing before me suggests that any information deriving directly from the Claimant is worthy of credit. He may have made more than one journey to Belgium. Although the only reason given for going to Belgium is to claim asylum, I can see no good reason for saying that he made such a claim promptly after arriving there. And it does look as though he must have been telephoning from outside the United Kingdom in June 2010 and being very much less than candid about where he was: the author of the minute was able to take the view that "it does appear that he still lives somewhere in Southampton". A further minute on 6 July appears to indicate that on that date an officer dealing with the Claimant's case thought that the Claimant could be removed from the United Kingdom to Iraq relatively soon, but two days later a note referring to "arrival directions and laissez passer" would tend to show that the author of that note was aware that the Claimant was abroad and imminently returning to the United Kingdom.
On the Claimant's return to the United Kingdom on 19 July he claimed asylum again. He was interviewed again. A letter was prepared on 9 October 2010 noting that the Claimant had specifically said that his claim was the same as before, although there were now some extra documents. The letter considers the claim, the Claimant's history and the new documents, concludes that the submissions do not amount to a fresh claim, and state that the claim is clearly unfounded within the meaning of section 94(2) of the Nationality, Immigration and Asylum Act 2002 and that "a certificate is issued" under that section. The affect of such a certificate is that the Claimant would have a right of appeal, but only from outside the United Kingdom.
It appears that that letter was not served. On 29 October an MP wrote to the Secretary of State asking for an update on the Claimant's position, and was told on 19 November that the Claimant had no outstanding applications. That was presumably because of the letter of 9 October. The Home Office minutes six months later indicate investigations as to whether the letter had been sent out, and a conclusion that it had not. But on 5 December 2010 a letter had been sent to the MP correcting the previous one, and indicating that there was a claim outstanding. The letter dated 9 October 2010 was eventually served on 5 April 2011. Meanwhile, in an undated letter apparently sent on or about 15 December 2010 the Claimant's solicitors were told that there were outstanding representations: the previous statement was "due to an administrative error with our records which has now been rectified". The letter continued by saying that "upon reviewing your client's Home Office file it has now been sent to our Case Resolution Department".
The Case Resolution Department (CRD) was therefore responsible for sending out the letter of 9 October 2010, and was evidently content that it be served, although having been made by a different branch of the UKBA. The CRD was the office primarily responsible for determining "legacy" cases (see below).
There were further submissions by the Claimant. Home Office minutes show that, following his return from Belgium, he had made appointments to make further submissions on 2 August and 21 October 2010 but failed to attend; however on 10 May 2011 he attended and made further representations. In July 2011, on the closure of CRD, the Claimant's case was transferred to the Case Assurance and Audit Unit (CAAU). On 13 September 2011 the Secretary of State granted the Claimant Discretionary Leave to Remain (DLR) for three years. The reasons were noted as follows:
"Initial delay in deciding asylum claim was an error on UKBA's behalf. The applicant has also departed the UK, but through no fault of his own, was turned back from Iraq. It also appears that further submissions decision of 9/10/10 was only served to file.
The applicant has a girlfriend in the UK. He has also been treated for mental illness after several suicide attempts.
After assessing all of the evidence I deem it appropriate to grant Mr R discretionary leave on the basis of eight years residency which can be mainly attributed to delays caused by UKBA."
Just under three months later the Claimant issued these proceedings, challenging the failure to grant him indefinite leave to remain (ILR). In January 2012, an officer dealing with the Claimant's pre-action protocol letter noted as follows:
"It is unclear why...
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