R Londonvi v Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leggatt |
| Judgment Date | 17 January 2013 |
| Neutral Citation | [2013] EWHC 185 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 January 2013 |
| Docket Number | CO/7291/2011 |
[2013] EWHC 185 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Leggatt
CO/7291/2011
Mr Gordon Lee (instructed by Sutovic & Hartigan) appeared on behalf of the Claimant
Mr Matthew Gullick (instructed by Treasury Solicitor) appeared on behalf of the Defendant
This is a claim for judicial review of a decision made by the Secretary of State on 7 July 2011 to refuse to revoke a deportation order made against the claimant and certifying his application for the order to be revoked as "clearly unfounded" pursuant to Section 94 (2) of the Nationality Immigration & Asylum Act 2002.
The Background
The claimant was born in Angola on 7 November 1979. He entered the United Kingdom with his uncle on 21 August 1990 when he was just under 11 years old. His uncle applied for asylum. The uncle's claim was ultimately allowed on 19 July 1999. In October 2002 the claimant was granted refugee status as a dependant of his uncle.
Between April 1998 and January 2009 the claimant was convicted of a large number of criminal offences — some thirty-two offences according to a schedule of his criminal history, committed on twenty-three occasions. Many of those offences could be described as minor but nineteen resulted in sentences of imprisonment albeit only often for a period of a few days. The most serious of the offences were the following: a sentence of twelve weeks' imprisonment was imposed in February 2006 for offences of possession of cannabis, shoplifting and failure to surrender to bail; twelve weeks' imprisonment suspended for eighteen months for offering to supply cannabis in June 2006 (that suspended sentence subsequently being activated in August 2006 because of the commission of further offences); three months' imprisonment for possession of crack cocaine in August 2006 and one month's imprisonment consecutive at that time for failure to surrender to custody. This was followed by the two most serious offences: an offence of robbery for which the claimant was sentenced in August 2008, in the first instance, to a community order with a drug rehabilitation requirement (however following a breach of that order the claimant was subsequently re-sentenced for the robbery offence to twenty-one months' imprisonment); and a further offence of attempted robbery for which he was sentenced to two years' imprisonment in November 2008. There was also finally a public nuisance offence for which he received a four-month sentence of imprisonment in January 2009, at which time he was in custody.
On 26 September 2009, whilst the claimant was still in custody serving his sentence for the attempted robbery offence, he was served with an order for deportation and for cessation of his refugee status. He appealed against the deportation order to the Asylum & Immigration Appeal Tribunal without legal representation and acting in person. That appeal was dismissed on 6 November 2009. On 2 March 2010 he was granted permission to appeal to the Upper Tribunal. However that appeal was dismissed on 10 June 2010. On 6 July 2010 he applied for revocation of the deportation order. That application was refused by the Secretary of State on 1 October 2010. A claim for judicial review was brought against that decision. Certain legal points were raised in relation to that claim into which I need not go. It is sufficient to say that the ultimate result of the proceedings was a settlement by consent on 13 June 2011 under which the Secretary of State agreed to make a new decision. That new decision was made on 7 July 2011, refusing to revoke the deportation order. It is that decision which is challenged by way of this claim for judicial review.
I should say that at the time when the claimant would otherwise have been released from custody on 16 September 2009, having completed the custodial part of his sentence for the robbery offence, he was detained following the decision to deport him. In consequence, he remained in detention until, I am told, 20 November 2012 at which time he was released on bail. In consequence, it is only in the last few weeks that the claimant has been at liberty since his imprisonment on 12 November 2008.
The Legal Framework
The general legal framework applicable to this claim for judicial review is common ground between the parties and may be summarised as follows.
(1) A decision to refuse to revoke a deportation order is an "immigration decision" within the meaning of Section 82 (1) of the 2002 Act, in respect of which a person may appeal to what is now the First Tier Tribunal; (2) however the right of appeal is not one which, under Section 92 of the 2002 Act, can only be exercised within the United Kingdom and therefore its exercise is not a bar to deportation subject to the following exceptions; (3) a "human rights claim", ie a claim that a person's removal from the United Kingdom would be incompatible with his rights under the European Convention, does give rise to a right of appeal within the United Kingdom under Section 94 (4) of the 2002 Act; (4) the Secretary of State may nevertheless certify such a human rights claim as "clearly unfounded" pursuant to Section 92 (2) of the Act (the effect of such certification being that the right of appeal which would otherwise be exercisable within the United Kingdom is not so exercisable); (5) where, as in this case, a human rights claim has been made which the Secretary of State has certified as "clearly unfounded" and a challenge is made to the Secretary of State's decision by way of judicial review, the essential question for the court is whether the human rights claim has a realistic prospect of success on an appeal to a tribunal.
If the court concludes that the claim has a realistic prospect of success it must follow that the court will also conclude that the Secretary of State's view that the claim is "clearly unfounded" is irrational. Conversely if the court concludes that the claim has no realistic prospect of success the challenge to the Secretary of State's decision must fail (see ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348 [23] per Lord Phillips, President of the Supreme Court).
Accordingly, the essential question which I have to consider in this case is whether the human rights claim — the certified claim — has a realistic prospect of success before a tribunal.
In this case the claimant relies on Article 8 of the European Convention which provides that everyone has a right to respect for his private and family life. The general approach which any decision maker should follow when removal from this country is resisted on the basis of reliance on Article 8 is again common ground between the parties. The questions which arise are set out in a well-known passage from a speech of Lord Bingham in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, 389 [17], and are these:
"17 …..
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"
The Tribunal Findings
In relation to the decision to deport this claimant, those questions were considered by the Asylum & Immigration Tribunal and on appeal by the Upper Tribunal when the claimant appealed against the deportation order in reliance on Article 8. Although challenge is made (to which I shall come) to the approach taken as a matter of law by those tribunals, certain factual findings made by the Asylum & Immigration Tribunal remain relevant. In particular, no further evidence has been adduced by the claimant which is relied on to suggest that any error was made by the tribunal in relation to its factual findings or that a different tribunal might make any different factual findings.
Four findings in particular are in my view relevant. First, the tribunal rejected the claimant's evidence that he had completely forgotten the language he learned in Angola and had spoken until he left at the age of 10. They found it not plausible that he did not speak the language of his homeland, particularly with his uncle and nephew when communicating with them. Second, the tribunal accepted that the claimant has a private life in the United Kingdom because of his long residence here.
Third, the tribunal found that the claimant does not enjoy a family life in the United Kingdom and that finding was upheld on appeal. At the tribunal hearing the claimant gave evidence that he had a longstanding partner with whom he had a daughter and claimed that he had telephoned his daughter regularly whilst in prison, and that he would resume his relationship with his partner on release. The tribunal rejected that evidence and found that the claimant had no or no meaningful continuing relationship or contact with his claimed partner and child, was also...
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...[2004] UKHL 27. 21. In relation to proportionality, the panel quoted from several authorities, including R (Londonvi) v SSHD [2013] EWHC 185 (Admin) in which Leggatt J emphasised the necessity for the respondent or tribunals to consider the principles outlined in the decision in Maslov v Au......
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R (on the application of Miguel Nesta Cover) v Home Secretary
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