R Mayaya v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMr Justice Cranston
Judgment Date25 November 2011
Neutral Citation[2011] EWHC 3088 (Admin)
Docket NumberCase Nos: CO/1524/2011, CO/1862/2010 and CO/15488/2009
CourtQueen's Bench Division (Administrative Court)
Date25 November 2011
Between:
The Queen on the application of (1) Mayaya
(2) Ao
(3) He
Claimants
and
Secretary of State for the Home Department
Defendant

[2011] EWHC 3088 (Admin)

Before:

Mr Justice Cranston

Case Nos: CO/1524/2011, CO/1862/2010 and CO/15488/2009

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Laura Dubinsky (instructed by Lawrence Lupin) for Mayaya

Ranjiv Khubber (instructed by ABL Solicitors LLP) for AO and (instructed by Luqmani Thompson and Partners) for HE

Charles Bourne (instructed by Treasury Solicitors) for the Defendant

Hearing dates: 25–27 October 2011

Mr Justice Cranston

INTRODUCTION

1

These test cases concern the Secretary of State's policy of granting leave to remain in the United Kingdom for those sometimes called foreign national prisoners. In particular it focuses on those who have committed an offence in the United Kingdom which is deemed serious but whose removal from the country would breach the European Convention on Human Rights ("ECHR"). So at the outset it is important to appreciate that there is no question in these cases of persons being deported from this country. Rather, the issue concerns the type of leave to remain they have while they are here. Under the Secretary of State's policy, all offences attracting a sentence of 12 months or more are deemed serious crimes and automatically exclude a person from obtaining humanitarian protection leave. The same exclusion category applies to discretionary leave: a person having committed a serious crime will not normally receive a grant of discretionary leave for a period exceeding six months. The policy also stipulates that while those who have been granted discretionary leave are ordinarily eligible for indefinite leave to remain, i.e. settlement, after six years, those who have committed serious crimes may only obtain indefinite leave to remain after 10 years of discretionary leave to remain.

2

While there is some overlap between the basis to the claims of Kinene Mayaya ("KM") on the one hand, and AO and HE on the other, there are significant differences. For one thing KM committed a passport offence and the focus of his claim is on the lawfulness of treating this as a serious crime. AO and HE accept that they have committed serious crimes (drug importation and murder respectively) so their attack is more on how the policy was applied in their cases. With all three claimants, however, there is a reliance on the long-established doctrine that a public official like the Secretary of State, entrusted with a discretionary power, must not unlawfully fetter the exercise of her discretion. All claimants also, albeit for different purposes, invoke the principle enunciated in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719, [2010] 3 WLR 1526, that the Secretary of State should not, through her policies, apply more restrictive criteria affecting an individual's status and entitlements than those contained in the Immigration Rules, since unlike the rules they are not subject to Parliamentary scrutiny.

THE CLAIMANTS AND THEIR CLAIMS

Kinene Mayaya

3

Kinene Mayaya ("KM") came from the Democratic Republic of the Congo. He arrived in the United Kingdom on 26 March 1999 and claimed asylum the following day. His claim was refused in mid July 2002, and his appeal subsequently dismissed. Meanwhile, in March 2001, he had been convicted of theft and given a conditional discharge. In early February 2003 he made a human rights application, which was refused. An appeal was dismissed following a hearing before an adjudicator. Permission to appeal was granted but the appeal was subsequently refused in September 2004. So by the end of 2004 KM's appeal rights were exhausted and he was in the United Kingdom unlawfully.

4

In March 2005 KM entered a relationship with another Congolese, Gudule Makuntima Uzima, who had herself entered the United Kingdom in September 2003, accompanied by her younger sister. Her initial claim for asylum was refused and her subsequent appeal dismissed. In the following years KM and Ms Uzima had three daughters, in March 2006, March 2007 and August 2010. (The two eldest became British citizens in May 2011). KM and Ms Uzima have also had the care of Ms Uzima's younger sister.

5

In mid July 2005 KM was arrested while working illegally in a warehouse under an assumed identity. He pleaded guilty to one count in respect of possession of a false instrument, a Spanish passport, and to another count of obtaining pecuniary advantage by deception earlier in the year by falsely representing that he was someone else, the person named in a French passport. (The exact nature of KM's offending was only evident towards the end of the hearing when his solicitors obtained a copy of the indictment. In these cases the court should have before it the indictment, the prosecution's opening of the facts (on a plea), and the judge's sentencing remarks). On 10 October 2005 in the Crown Court at Stoke, HH Judge Glenn sentenced KM to a term of 18 months' imprisonment, 12 months for the passport offence, and 6 months for the deception, the sentences to be consecutive. He said he needed to work to support himself and his new partner. In sentencing KM the judge noted that this was not his first conviction for dishonesty. The judge referred to the decision in R v Kolawole [2004] EWCA Crim 3047, [2005] Cr App R(S) 711, when the Court of Appeal said that deterrent sentences were justified. The judge accorded KM a one third discount on the sentence because of his early guilty plea. The judge said that deportation was a matter for the Secretary of State, not for him, and made no recommendation to deport. On 9 March 2006 KM was released on home detention curfew, his electronic tag being removed on 13 April 2006.

6

On 8 May 2006 the Secretary of State made a decision to deport KM from the United Kingdom. He appealed that decision. On 21 January 2008 the Asylum and Immigration Tribunal allowed his appeal to the extent that leave to remain should be granted to KM until such time as he and his family could be lawfully removed. In fact within a fortnight Ms Uzima and her daughters were granted indefinite leave to remain. There then followed correspondence between KM's solicitors and the Secretary of State, in which they drew attention to the Tribunal finding and requested indefinite leave to remain in line with Ms Uzima and her daughters. In mid 2008 KM was granted discretionary leave for 6 months, without explanation. Despite requests, no reasons were forthcoming, although in July 2009 the Secretary of State explained that there was a backlog of cases. Meanwhile, in May 2009 KM was convicted of driving while disqualified and using a vehicle while uninsured, for which he was sentenced to a community order of 150 hours unpaid work and disqualified from driving for 12 months. The Secretary of State decided that this did not warrant further deportation action.

7

In mid November 2010 KM was granted a further period of 6 months discretionary leave. On 18 November 2010, in reply to KM's solicitors, the Secretary of State explained that KM was excluded from humanitarian protection, and therefore a standard issue of discretionary leave, by virtue of his criminal offence. That is the first decision challenged in this judicial review. KM's solicitors sent a letter before claim on 22 December 2010, in which they set out the case for indefinite leave to remain or at least three years' discretionary leave to remain. In response on 4 February 2011 the Secretary of State repeated in effect the earlier explanation.

"A person who normally becomes eligible for settlement after completing a period of six years discretionary leave. Your client is not eligible for consideration for settlement until they have completed ten continuous years of discretionary leave as your client is excluded from humanitarian protection (and therefore a standard issue of discretionary leave) as he committed a serious crime of Obtaining a Pecuniary Advantage and Having a False Instrument for which he received a sentence of 18 months' imprisonment".

This is the second decision challenged in the proceedings.

8

This judicial review was launched on 16 February 2011. On 5 August 2011 the Secretary of State granted KM three years' discretionary leave. She stated that by virtue of the conviction, the claimant was excluded from humanitarian protection under paragraph 339D of the Immigration Rules. He would not therefore be eligible for consideration for indefinite leave to remain until he had completed 10 years of discretionary leave. His was not considered to be a case where at the present indefinite leave should be granted exceptionally, outside the terms of the policy.

AO

9

AO, a national of Nigeria, was born in 1945 and arrived in the United Kingdom on 13 November 1990. He was found in possession of heroin and charged with importing that drug. He assisted Customs & Excise in the arrest of two other members of the drugs ring, one being UO. On 14 February 1991 in the Crown Court at Liverpool AO pleaded guilty to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of heroin. The heroin concerned had a street value of some £36,270. On 11 June HH Judge Clarke sentenced him to 6 1/2 years imprisonment. Because of the assistance AO had given, the judge later varied that sentence, reducing it to 5 years' imprisonment. A jury convicted UO of the same offence—at the trial AO gave evidence for the prosecution—and he was sentenced to 11 years imprisonment. Both AO and UO appealed to the Court of...

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