R Khan v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | HHJ Belcher,Judge Belcher |
| Judgment Date | 16 December 2013 |
| Neutral Citation | [2013] EWHC 4436 (Admin) |
| Date | 16 December 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7884/2013 |
[2013] EWHC 4436 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
Her Honour Judge Belcher
Case No: CO/7884/2013
The Claimant appeared in person
Mr Matthew Barnes (instructed by the Treasury Solicitor) appeared on behalf of the Defendant.
This is the substantive hearing of Mrs Nasreen Khan's claim for judicial review. She challenges two decisions of the Secretary of State, the first refusing an application she made for asylum and the second a decision that she and the three children who are the subject of the asylum claim should be removed from this country.
The removal directions were set aside by the Secretary of State once the asylum application was lodged and during the progress of these proceedings. Therefore the challenge to the removal decision is now academic. I say that because if the outcome of this application is against the Claimant, then the Secretary of State would have to issue further removal directions in any event.
It may be helpful if I set out the background immigration history in this case. The Claimant, Mrs Khan, entered the country on 26 September 2011 with her husband and three dependent children, and they were granted leave to remain as visitors until 14 December 2012. The second claimant, that is Mr Saleem, claimed asylum on behalf of the whole family on 26 December 2011. In other words, Mrs Khan and the three children were dependents in her husband's asylum claim. That asylum claim was refused on 23 January 2012. Having refused asylum, the claimants were served with the asylum refusal decision and one-stop notices under Section 120 of the Nationality, Immigration and Asylum Act 2002. I have copies of those notices in the bundle and, in particular, the notice addressed to Mrs Khan, which states, as required, the following:
"You must now make a formal statement about any reasons why you think you should be allowed to stay in the United Kingdom. This includes why you wish to stay here, and any grounds why you should be removed or required to leave.
…
You do not have to repeat any reasons you have already given us but if you do have more reasons you must now disclose them.
If you later apply to stay here for a reason which you could have given us now, you may not be able to appeal if the application is refused."
That document is dated 26 January 2012. There is a suggestion in paragraph 9 of the Claimant's detailed grounds that that document may not have been received by Mrs Khan. Paragraph 9 says:
"It is unclear whether the First Claimant was ever served with that notice."
However, for the purposes of her husband's appeal to the Tribunal against the refusal of asylum, solicitors acting for the Claimants submitted a bundle of documents to that Tribunal including a copy of the one-stop notice served on Mrs Khan. I am entirely satisfied, therefore, that she received or knew of that notice.
At that stage, Mrs Khan supplied no reasons at all in response to that notice. She continued to rely on her husband's position, and he appealed the refusal of asylum and that was dealt with in the Immigration Tribunal. I have before me the decision of the First-tier Tribunal, which I have read. I do not propose, of course, to go through it in full. It suffices to say that the Tribunal Judge (that is, Judge Macdonald) rejected Mr Saleem's account of the facts and matters he sought to rely upon in support of his claim for asylum. At a number of points, the Immigration Judge described Mr Saleem's account as fabricated. In particular, I refer to paragraph 52, in which the Immigration Judge says this:
"In conclusion I find the Appellant [that is, Mr Saleem] is not a witness of truth. I am satisfied, on the evidence before me, that the whole of his account has been fabricated in order to gain access for himself and his family to the United Kingdom. Whatever the reasons which caused him to bring his family to the United Kingdom, it is not for the reasons he has claimed in his evidence before the Tribunal."
The rejection of Mr Saleem's asylum claim was upheld by the Tribunal. The Tribunal Judge noticed that the Mr Salleem's account was littered with inconsistencies and his oral evidence was vague and evasive, and he identified the inconsistencies in the course of his judgment. He highlighted the different account given in a screening interview to that given in the asylum interview, and to that in the evidence before the Tribunal, and similar matters of that sort. He also commented that, although Mr Saleem's claim involved threats having been made directly to his wife and children and that they were all ill-treated by the authorities, the appellant's wife did not give evidence nor did she provide a statement to the Tribunal. Those are all matters of relevance in the context of this application before me.
Mrs Khan appears before me in person today. At one point she asked me, through the interpreter, if I would hear from her husband because, she said, this case all arises out of his position should they return to Pakistan. I refused to hear from Mr Saleem. Firstly, he is not a party to these proceedings, his claim for permission for judicial review having been refused. Furthermore it was clear he wished to put evidence before me to explain why he claims he cannot return to Pakistan, and I made it clear that I am not sitting in the position of a court of appeal, that I am not reviewing the Tribunal decision and that the findings of the Tribunal remain in place and are findings which I will use in the context of these proceedings. I sought to explain to Mrs Khan on a number of occasions, with the assistance of the interpreter, that notwithstanding these proceedings are called judicial review they are not an appeal in any sense from the Tribunal's decision, nor am I in a position, even if I thought it were right to do so, where I could grant asylum. The sole function of this court is to review the decisions made by the Secretary of State in the context of checking that they have been lawfully made and are properly within the ambit of her discretion, and if those decisions have been properly and lawfully reached, this court would have no power to interfere with those decisions. Mrs Khan was anxious to point out that she says this is a genuine case, that there have been no fake documents, that all documents are genuine, and that, she says, could be proved. She said they can be verified from anywhere. Documents cannot, in fact, be verified from anywhere. But there again, that is not the issue in this case. She told me that whoever has taken the decision at the Home Office is wrong and that she is doing this for the safety of her children, and that she is not going to take them back to Pakistan. She said the children have already faced a lot and asked me to cooperate with her and her family as much as possible.
Before leaving the Tribunal decision, I should also mention that the Tribunal Judge addressed documents which were placed before him, which he was concerned about, and he found the documents to be unreliable and attached no weight to them. That was in the context of his conclusions regarding credibility and the fact that the documents were poor copies, not originals, and various discrepancies were identified in those documents. The Tribunal judge also addressed the Article 8 claim which had been made by Mr Saleem and concluded that he was satisfied that returning Mr Saleem and his family to Pakistan would not constitute a breach of Article 8 rights.
Following the Tribunal decision, attempts were made to remove the family from the UK. In the usual way, a family returns conference was set up, endeavouring to persuade this family to comply with the process. The Claimants refused assisted voluntary return to Pakistan, and Mr Saleem made further representations on 28 May, said to be a fresh claim. Those representations were rejected by the Secretary of State in a letter dated 21 June 2012, and the suggestion it was a fresh claim was also rejected. Mr Saleem then made further representations in a further attempt to obtain leave to remain, and those were rejected by a letter dated 19 July 2012. That letter, it is right to say, fully addressed all the further points made by Mr Saleem including Article 8 and the best interests of the children under section 55 of the Borders, Citizenship and Immigration Act 2009.
On 19 July this family was due to be removed to Pakistan. They had been served with removal directions requiring voluntary check-in. They did not turn up. Further attempts, therefore, were made to remove them, and on 25 July 2012 immigration officers attended at the family home and took the family into detention. In response to that, Mrs Khan applied for asylum for herself and the three children. Initially she did so by a handwritten letter simply saying that they would be in big trouble if they went back to Pakistan. Solicitors on the same day submitted representations on her behalf, and those representations enclosed further documents said to assist in support of the claim. The letter of 25 July is at page 28 in the bundle prepared for today's hearing. The solicitors state that she could not claim asylum in the past due to lack of funds and/or medical issues. No evidence of either has been produced. There is some very general evidence of seeking medical assistance in this country, but it is general, anti-depressants and matters of that sort for Mr Saleem, but nothing that...
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