R (Meaza Asefa) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice LANGSTAFF,Mr JUSTICE LANGSTAFF |
| Judgment Date | 30 January 2012 |
| Neutral Citation | [2012] EWHC 56 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 January 2012 |
| Docket Number | Case No: CO/11197/2010 |
[2012] EWHC 56 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
LEEDS
Mr Justice Langstaff
Case No: CO/11197/2010
Melanie Plimmer (instructed by Switalskis) for the Claimant
Alan Payne (instructed by Treasury solicitor) for the Defendant
Hearing dates: 7 th and 8 th December 2011
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Claimant has a regrettable immigration history. The central issue in her case is whether the Secretary of State was right to certify her claim to remain in the UK as clearly unfounded, such that she cannot appeal against it from within the country. In the circumstances of this case, this involves asking what the best interests are of the two of her children who remain with her. Could they reasonably be found to be such that to remove the Claimant to Italy could arguably be an exercise of power disproportionate to the demands of consistent and effective border control, since her removal would be bound to involve their removal too unless the family unit were to be split?
It is suggested by her that the best interests of the children are recognised by their remaining in the UK, and are so strong that they are capable of outweighing the considerations which argue in favour of her compulsory return.
Background Facts
The undisputed facts are as follows. The Claimant is a citizen of Eritrea. In June 2005 she applied for, and in April 2006 was granted, asylum status in Italy. In early 2008, her three children were brought by an agent to Italy. In April 2008, the Claimant entered the UK clandestinely and unlawfully, and claimed asylum on 21 st. of that month in Leeds. She did not disclose that she had claimed and been granted asylum status in Italy. Indeed, she appeared to have gone to some lengths to disguise this, since her fingertips were damaged, preventing her fingerprints being taken which would have revealed it. She denied having previously claimed asylum elsewhere. After three unsuccessful attempts to take her fingerprints, they were taken successfully on 9 th. June 2008, and within a week had been matched with an asylum seeker in Italy (who had adopted a different name while there).
In her statement – taken by her legal representatives, and containing a statement of truth – submitted in support of her claim for asylum in the UK, the Claimant gave an account entirely inconsistent with any physical harm having befallen her directly in Eritrea. Rather, she claimed she had been forewarned that the authorities were looking for her, and had fled before they arrived at her house to seize her.
On 3 rd. July 2008 the defendant asked the Italian authorities to accept responsibility for the Claimant under Article 16(c) of the Dublin Regulation. The Italian authorities failed to respond within the requisite time-limits and were therefore taken to have accepted responsibility.
Removal directions were set for the 27 th. August 2008, to return the family to Italy. These were cancelled after the Italian Police reported that they were not willing to accept the children, because the details the Claimant gave did not match the details of the dependent children recorded by the Italian authorities. They had given different names when in Italy.
The Claimant then refused to co-operate with the Defendant's attempts to interview her in relation to the children, though she produced a medical report showing that she was HIV positive, and receiving medication for that, in an attempt to argue against removal.
Removal directions were set, but cancelled in the light of the revelation of her HIV status. They were set again for 24 July 2009 when Italy did accept responsibility, but the Claimant sought judicial review, and the removal was cancelled.
This application for judicial review was withdrawn, following judgment in EW v SSHD [2009] EWHC 2957.
A further challenge to removal followed, on a different ground again – this time that the Claimant's permit to stay in Italy had expired – and again came to nought.
On 13 July 2010 removal directions were again set. The family were due to self check-in. They did not comply.
Up to this time, the Claimant had not alleged that any direct physical or sexual harm had befallen her, despite her detailed statement about the events which caused her to leave Eritrea (2 May 2008), her claim in early 2009 to be suffering from HIV, her claim in July 2009 that she had been forced to live on the streets in Italy, her claim to remain in the UK made in April 2010 (alleging that her permit to stay in Italy had expired) and the removal directions with which she had been supposed to comply in July 2010. In late July 2010, for the first time, she alleged that she had been repeatedly raped in both Eritrea and Italy, and that there was a real risk of her committing suicide if returned to Italy.
In support of this, she submitted a report from a Dr. Buller, a psychiatrist.
On 26 th. August 2010, the Defendant certified her human rights claim as clearly unfounded, and refused to transfer refugee status to the UK. Removal directions were set once again, for the 26 th. October 2010, but were cancelled in the light of evidence that she was unfit to fly.
The Claimant applied again for judicial review – this is the application which now comes before the court. Although HHJ Behrens refused permission on the papers, HHJ Belcher granted permission on oral renewal of the application, on limited grounds.
It is a matter of fact that the Claimant has made more than one witness statement with the aid of solicitors during the course of this history. The first (May 2008) gives an account which is completely inconsistent with any physical harm having befallen her in Eritrea – her reason for fleeing was that she had adopted Pentecostal Christianity, and she says she left before the authorities could arrest her. A second account, also verified by a statement of truth, is contained in her review application of 24 th. July 2009, which concentrates on conditions in Italy, alleging (contrary to accepted facts) that the family had not been allowed to take up employment in Italy (whereas the evidence before me, which I accept, is that as someone who had been granted asylum she was in no different a position than an Italian citizen). Nothing was said then about any sexual or physical assault upon her, despite graphic descriptions of the abject conditions she says she was forced to adopt. In a statement of September 2010 she denied deliberately damaging her fingertips, but gave no explanation how they came to be damaged. Finally, in a witness statement dated 11 th. January 2011, she explained that she did not mention anything about her time in Italy in her initial application because when she thought about what had happened to her there it made her feel terrible, and that she should kill herself; she had not mentioned the rapes because she was ashamed; inconsistency in her account as to when her problems began (obvious on a comparison of her accounts) was because of misunderstanding by the interpreter. She also volunteered that she had not spoken about the rapes in front of her children – but this is arguably contradicted in that on other occasions she has said that at least one rape took place in front of them, so it is not as if they were unaware of what had happened, if it did.
The report of Dr. Buller is said by the Defendant to contain more inconsistent material emanating from the Claimant. She claimed to him that in Eritrea, rather than having fled the family home before she could be found by the authorities, 4 soldiers who had come to her home had raped her in front of her children. This does not fit with her earlier accounts.
She claimed to have been in Italy for around 6 months during which she was living on the streets, in dangerous places surrounded by those on drink and drugs. She said she had been raped there on a number of occasions, sometimes in front of the children, and believed that is how she contracted HIV. It is however now accepted that she actually had accommodation, provided for her by SPRAR, at least until early 2008 at about the time she says (and the Defendant is prepared to accept) she was joined by her children.
Accordingly, the account she gives has been the account of someone who objectively viewed has been deceptive, manipulative, and prepared to change her account to such an extent that her latest statement deposes to a completely different set of facts than did her first.
Her claim here does not however rest centrally upon the merits of her own claims viewed in isolation, but upon a matter raised by her only recently in this long history: that of the best interests of her children.
The children whose interests fall for consideration, a daughter and a son, are Eritrean. As best can be established, they (when 14 or 15, and about 10 – different dates of birth have been given) came with a brother (then 12 or 13) to Italy in early 2008 to join their mother once she had achieved refugee status there. There is no evidence to suggest that while there they were accommodated by the State. The Claimant, and the elder daughter, say that the Claimant left SPRAR accommodation, lived rough, then came clandestinely to the UK, becoming separated from the third child at Calais. They...
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