R Lambe v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Michael Fordham |
| Judgment Date | 20 January 2017 |
| Neutral Citation | [2017] EWHC 1002 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3096/2016 |
| Date | 20 January 2017 |
[2017] EWHC 1002 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London WC2A 2LL
Michael Fordham QC
(Sitting as a Deputy Judge of the High Court)
CO/3096/2016
Mr P Paraskos (instructed by A O & Associates) appeared on behalf of the Appellant
Ms S Blackmore (instructed by the Government Legal Department) appeared on behalf of the Respondent
THE DEPUTY JUDGE:
This is a claim for judicial review for which permission was given by Karon Monaghan QC sitting as a Deputy High Court Judge on 11 August 2016. She gave permission for judicial review on the basis that she was persuaded that it was arguably irrational for the Secretary of State in this case to have decided that the claimant had no fresh claim under the relevant Immigration Rule, and did not meet a relevant test of active parental role under the Immigration Rules, in the light of a final order of the Family Court dated 14 July 2015 which had changed the contact arrangements by which the claimant has supervised access to her two children.
At the heart of the case, I am concerned with the position of a mother and two children, now as I understand it aged 13 and 8, who are both in foster care having been taken into care some 6 years ago.
The key facts of the case are these. On 28 October 2015 the claimant, through her solicitors, made an application for limited leave to remain on the basis of her access rights to her children, enclosing the 14 July 2015 Family Court order. She relied on Article 8 of Schedule 1 to the Human Rights Act 1998 and section 55 of the Border, Citizenship and Immigration Act 2009 (the Children's Best Interests). By reasons for a decision dated 15 February 2016 but served on the claimant on 21 March 2016, the Secretary of State refused that application.
The question for the court is whether the Secretary of State's conclusion, that no eligible 'fresh claim' had been raised by the claimant, is sustainable on judicial review applying a supervisory jurisdiction (that is to say, an unreasonableness test) but with anxious scrutiny in this human rights context.
The position in law, settled at the level of the Court of Appeal at least for the present, is that the 'fresh claim' test — including the question of 'realistic prospect of success' – is not an objective question for the reviewing court, unlike the equivalent question in 'clearly unfounded' certification cases. The courts have recognised the justifiability of an assimilated test but nevertheless the test on judicial review remains what is still described in some quarters as a "Wednesbury" review. I need only refer in that context to one authority, R (MN (Tanzania)), v Secretary of State for the Home Department [2011] EWCA Civ 193 at paragraph 16.
The essence of the test in relation to 'fresh claims' and the approach to it under Immigration Rule 353 is helpfully encapsulated in a number of authorities. I have found particularly helpful AK (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 535, paragraphs 23 to 26. That passage in the judgment of (the then) Toulson LJ first explains that, there being no appeal from a rule 353 refusal, the Secretary of State must decide:
"23. Whether an independent Tribunal might realistically come down in favour of the applicant's […] human rights claim, on considering the new material together with the material previously considered.
Only if the Home Secretary is able to exclude that as a realistic possibility can it safely be said that there is no mischief which will result from the denial of the opportunity of an independent Tribunal to consider the material."
At paragraph 25, referring to earlier authority namely the well-known case of WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, Toulson LJ then draws attention to the task for the judicial review court as follows:
"The task of a court when called on to review a decision of the Home Secretary under rule 353 […] is to ask, first, whether the Home Secretary has asked himself the right question and, second, whether in addressing the right question he has satisfied the requirement of anxious scrutiny in his evaluation of the facts and the conclusions to be drawn from them."
That is the approach I take to this judicial review.
The reason in the present case why the question of a fresh claim arose, and the test for a fresh claim needed to be satisfied, was this. The Secretary of State had previously, on 13 November 2014, issued an adverse decision letter in response to letters that had been put forward by and on behalf of the claimant. That decision letter addressed Article 8 and Section 55 and the key Immigration Rule, that is to say Appendix FM (family members) Rule E — LTRPT 2.4 (a) and (b). That rule requires an applicant to:
"(a) … provide evidence that [she has] either:
(i) sole parental responsibility for the child; or that the child normally lives with them; or
(ii) direct access (in person) to the child … as ordered by a court in the UK; and
(b) The applicant must provide evidence that they are taking, and intend to continue to take an active role in the child's upbringing."
The Secretary of State in that November 2014 decision letter considered the (then) level of contact between the claimant and the two children. The letter concluded at paragraphs 16 and 17 that the current level of contact was not accepted to be sufficient to amount to family life, nor to demonstrate that she was taking (or intended to continue to take) an active role in the children's upbringing. The letter also concluded that the limited contact currently maintained could continue after return to Nigeria through modern communications including Skype.
The claimant had appealed against that refusal and her appeal was considered by the First-tier Tribunal on 16 July 2015. There was a hearing, which she did not attend, and the immigration judge gave a reasoned determination as to why the legal merits were dealt with in her absence on the materials in the case and how they were determined. The judge described the position so far as contact was concerned, being at that stage twice a year, and concluded that:
"The Tribunal does make a finding that the arrangements which have been put in place for the children are in their best interests and that it would therefore be appropriate in the circumstances to permit those orders to continue.
The appellant has on the evidence two visits per year and this is insufficient for her to establish a family life in this country with her children."
The judge went on to consider whether there were exceptional, compelling or compassionate circumstances warranting consideration under Article 8. The judge bore in mind that there were children involved and that it was appropriate to consider the matter under Article 8, not just the Immigration Rules. The judge found that the claimant had established a private and family life in the United Kingdom. The judge considered that section 117 of the Nationality Immigration and Asylum Act 2002 supported the conclusion that removal would be in accordance with the public interest. Finally, the judge said this:
"Lastly, the Tribunal also formed the view that the decision of the respondents is proportionate in the circumstances. The appellant did not appear for her hearing, was not represented and failed to inform the Tribunal of her non-attendance.
In these circumstances, she has not provided sufficient evidence to resist being removed from the United Kingdom and she was provided with ample opportunity to do so.
The Tribunal notes, as stated above, that she has very limited contact with her children as they are in care and that she has two days during the course of the year when that contact is permitted.
This suggests to the Tribunal that it is not sufficient for her to succeed under Article 8 and there are other methods which are available to her in relation to maintaining regular contact with her children. The decision of the respondents is therefore proportionate and reasonable in the circumstances."
The claimant sought to appeal against that determination but the Upper Tribunal refused permission to appeal, the application being out of time. That refusal is dated 29 September 2015. In those circumstances, the 'fresh claim' test is in play and presents the relevant criteria which the claimant needed to satisfy in order for her to have any further right of appeal.
The Family Court order of July 2015, on which reliance has been placed in order to seek to meet the fresh claim threshold, varied the contact position of the claimant in relation to the two children. The Family Court, in what is described as a "final order", recorded that contact between 14 July 2015 and the end of 2015 would be three sessions during school holidays, as specified. There was then to be a "LAC review" in December 2015 or January 2016. Subject to that, the question of compliance with a written agreement on the part of the claimant, and the question of whether the Local Authority considered it to be in the children's best interests, there were to be six supervised contact sessions during 2016, as specified. In breach of the written agreement, as an alternative, there would be four contact sessions during 2016.
The order makes clear on its face that the key issue was whether the contacts should be increased in line with recommendations that had been made by an Independent Social...
To continue reading
Request your trial