R (Madan) v Secretary of State for the Home Department; R (Kapoor) v Same
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton |
| Judgment Date | 25 July 2007 |
| Neutral Citation | [2007] EWCA Civ 770 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2007/1375 & C4/2007/1374 CO/2007/1374 |
| Date | 25 July 2007 |
[2007] EWCA Civ 770
The Master of the Rolls
Lord Justice Buxton and
Lord Justice Lawrence Collins
Case No: C4/2007/1375 & C4/2007/1374
CO/2007/1371
CO/2007/1374
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEENS BENCH DIVISION
MR JUSTICE MITTING
Miss Amanda Jones (instructed by Malik & Malik) for the Applicants
Miss Lisa Giovanetti (instructed by The Solicitor to Her Majesty's Treasury) for the Respondent
Hearing dates: 11 July 2007
Judgement
This is the judgment of the court.
The nature of these proceedings
Mr Madan and Mr Kapoor are both citizens of the Republic of Afghanistan. Mr Madan is a Sikh. Mr Kapoor appears to be a Hindu, though at one stage of the immigration process it seems to have been claimed that he also was a Sikh. Both claim to fear persecution on grounds of their respective religions if returned to Afghanistan. Both are unlawfully in this country, and the Secretary of State has made deportation orders against both of them. On 26 June 2007 the solicitors to both men issued Judicial Review proceedings seeking to challenge those deportation orders, and at the same time applied to Mitting J for injunctions preventing their removal pending those proceedings. Mitting J refused those applications and refused permission to appeal to this court. On application to a single judge of this court the deportation orders were stayed until the permission applications could be considered by the full court. After some discussion with the court at the consequent hearing counsel for the Secretary of State suggested that the merits could be more properly considered at an expedited hearing of the Judicial Review applications and the Secretary of State undertook to suspend any action on the deportation orders until those applications were discharged. We agreed to that course, albeit with some considerable reluctance, not least because it became apparent as the hearing proceeded that the material before us did not equip us to reach a proper decision ourselves.
We therefore made no order on the applications, against that undertaking and an undertaking by the applicants' solicitors to promote the Judicial Review proceedings with all despatch. This whole episode has, however, pointed to some wider issues on which the court needs to give guidance, which we do in this judgment. First, however, but purely in order to render the rest of what we say intelligible, we say something briefly about the nature and history of the two cases.
Mr Kapoor
Mr Kapoor was apprehended attempting to enter the United Kingdom clandestinely in March 2000. He was refused asylum, but granted exceptional leave to remain until 26 February 2006 under the then policy with regard to persons coming from Afghanistan. In October 2005 the AIT issued a Country Guidance determination, SL and others [2005] UKIAT 00137, which held that Sikhs and Hindus returning to Afghanistan do not face a threat of persecution per se, but that religion was a factor that could be taken into account in individual cases. In June 2006 Mr Kapoor's solicitors made a fresh claim, apparently for asylum, on the basis of an expert report about Afghanistan (not shown to us, and no longer relied on); but also claiming relief under article 8. That application was rejected, and in September 2006 Mr Kapoor withdrew his appeal against the rejection, his solicitors having given unfavourable advice as to the prospects of success. Rather, Mr Kapoor made an application for Indefinite Leave to Remain, on the basis of his previous exceptional leave, by then expired.
On 18 January 2007 the Secretary of State informed Mr Kapoor that he was considering his deportation, and invited representations. The solicitors replied on Mr Kapoor's behalf. On 19 February 2007 the Secretary of State informed the solicitors that those representations had been rejected, and on 21 February 2007 wrote to Mr Kapoor rejecting his application for indefinite leave to remain. A deportation order was served on 14 March 2007, and copied to the solicitors on 21 March 2007. They told us that thereafter they wrote to Mr Kapoor on a few occasions, but had no response. They did nothing about further challenge to the deportation order.
Miss Jones, who held a difficult brief with considerable resource, told us that the solicitors were justified in their inaction because no decision had been made on the application for indefinite leave to remain. That was wrong, on two grounds. First, a decision had been made, and communicated to Mr Kapoor in the letter of 21 February 2007. We were told that Mr Kapoor had never received the letter. We do not accept that. It was sent to him at the Dover Removal Centre where he was then detained, and in the short time available to her to address this allegation the Secretary of State was able to show us the office record of that despatch. Second, however, whether or not the decision had been made or notified to Mr Kapoor, if the deportation order was to be resisted because of pending leave proceedings it was necessary to take that point immediately on the order being made, and not to leave things, as they were left in this case, until removal was imminent.
With removal immediately pending, on 24 June 2007, as already described, the solicitors commenced Judicial Review proceedings challenging the decision to deport. That was based on two heads. First, Mr Kapoor's claims, previously abandoned, under article 8. Second, a claim that it was now unsafe in any event for Sikhs or Hindus to be returned to Afghanistan, that claim being based on a report of a Dr Ballard, produced for the first time in these proceedings on 25 June 2007.
Mr Madan
Mr Madan entered the United Kingdom unlawfully in 2003, an immediate claim for asylum being dismissed. The Secretary of State accepted representations as a fresh claim in August 2005, but that was rejected in April 2006. No application was made for statutory review, but a month after the decision further representations, again alleged to be a fresh claim, were submitted to the Secretary of State. The Secretary of State responded in early June 2007, rejecting the application and notifying the solicitors that removal directions...
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