R (Nadarajah) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMr Justice Stanley Burnton
Judgment Date02 December 2002
Neutral Citation[2002] EWHC 2595 (Admin)
Docket NumberCase No: CO/1067/2002
CourtQueen's Bench Division (Administrative Court)
Date02 December 2002
Between
The Queen on the Application of
Kalaichelvan Nadarajah
Claimant
and
(1) Secretary of State for the Home Department
(2) An Immigration Officer
Defendants

[2002] EWHC 2595 (Admin)

Before

The Honourable Mr Justice Stanley Burnton

Case No: CO/1067/2002

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Raza Husain (instructed by Winstantley-Burgess) for the Claimant

Ashley Underwood QC and Elisabeth Laing (instructed by the Treasury Solicitor) for the Defendants

Mr Justice Stanley Burnton
1

The Claimant is a Tamil from Sri Lanka who claims asylum in this country. He was married in 1991; his wife is also a Tamil. In 1995 he went to Germany and claimed asylum there. His claim for asylum was rejected. What then happened is disputed. The Claimant says that he voluntarily returned to Sri Lanka, where he was imprisoned and tortured; that his wife procured his release, following which he fled to this country. The Secretary of State believes that the Claimant never left Germany, but simply went to ground there. He illegally and clandestinely entered the United Kingdom on 21 August 1998. After his arrest as an illegal entrant he claimed asylum. At that time, his asylum claim in Germany was still subject to an appeal to the German courts. When he arrived in the United Kingdom, he concealed the fact that he had previously applied for asylum in Germany or anywhere else; that he had done so was discovered when fingerprints were taken. The Home Secretary sought to remove him to Germany as a safe third country. Judicial review proceedings were begun on his behalf, but were held in abeyance pending the appeals in Adan and Aisegeur [2001] 2 AC 477 and Yogathas [2002] UKHL 41 [2002] 4 All ER 785.

2

In August 2001, the Claimant's wife entered this country and claimed asylum. In November 2001, the Home Secretary certified the Claimant's asylum claim under section 11 of the Immigration and Asylum Act 1999. In January 2002, the Claimant's solicitors withdrew the first judicial review claim on account of judicial decisions on third country certification (in the case of Yogathas that of the Court of Appeal).

3

On 21 February 2002, his solicitors made written representations to the Secretary of State, asking him to consider his asylum claim domestically, and not to deport him to Germany. They referred to medical evidence supporting his case that he had been tortured, and to psychiatric evidence of the damage to his health that would be caused by his return to Germany. As to that, they stressed that:

"… it is our primary contention that Mr Nadarajah should not be returned to Germany because of the experiences which flowed from that country's consideration of his refugee status."

i.e., the torture he alleges he suffered when he returned to Sri Lanka.

4

In addition, they relied on the presence of the Claimant's wife in this country. By the date of the letter, her asylum claim had been rejected by the Secretary of State, but she had appealed. The Claimant's solicitors stated that his removal to Germany would separate him from his wife, and would raise Article 8 issues. They stated:

"There is another important matter. Our client's wife has joined him in the United Kingdom and made an asylum claim. We do not act for our client's wife, who is represented by Messrs M K Sri & Co. We understand that our client's wife is under refusal. However she has appealed and as yet no hearing date has been set. We would submit that this would further affect any decision on whether or not our client should be removed to Germany. If he is removed to Germany then it may be, notwithstanding our client's fears and the trauma of such return, that our client would not be removed from Germany. Of course it remains our primary contention that our client should not be removed to Germany at all. However whether or not our client might remain for any length of time in that country, this would necessarily separate him from his wife, which in turn raises Article 8 issues."

5

The claim under Article 8 based on the presence of the Claimant's wife had not been made before; in particular, it had not been made on receipt of the Home Secretary's original section 11 certificate of 20 November 2001. Curiously, the Claimant's solicitors letter did not mention the fact that the Claimant's wife was pregnant.

6

The Secretary of State responded by letter dated 25 February 2002, which was sent by fax to the Claimant's solicitors. He referred to the decision of the Court of Appeal in Thangarasa. In relation to the Article 8 claim, he stated:

"10. The Secretary of State would normally consider the substance of a potential third country case where: the applicant's spouse is in the United Kingdom; the applicant is an unmarried minor and a parent is in the United Kingdom, or when the applicant has an unmarried minor child in the United Kingdom. In all cases "in the United Kingdom " is taken as meaning with leave to enter or remain or on temporary admission as an asylum seeker. [Emphasis added]

11. The Secretary of State is satisfied that your client's case falls outside of his above stated policy. Your client's wife is not present in this country as an asylum seeker; indeed, her asylum application has been refused outright and she is appealing against that decision. Neither your client nor his wife has been granted refugee status in the UK nor has either of them been granted leave to enter or remain in the UK within the meaning of such terms under the Immigration Act 1971. Furthermore, your client had been aware since his arrest as a clandestine illegal entrant in 22 August 1998 that his immigration position in this country was, at best, extremely precarious, depending as it does on the outcome of his judicial review application.

12. The Secretary of State is confident that his above stated policy is compliant with the UK's obligations under Article 8 of the ECHR. The Secretary of State has considered all the evidence and representations made on behalf of your client. The question for the Secretary of State is whether the undoubted interference with your client's right to respect for his family life, if he were to be returned to Germany, would be proportionate and commensurate when balanced against his legitimate concerns in the public interest to maintain a credible and effective immigration control to the United Kingdom, and to deter abuse of the asylum system.

13. The Secretary of State notes that your client arrived in the United Kingdom travelling alone on 22 August 1998 having prior to this lived in Germany since 1995. The Secretary of State does not know when your client's wife arrived here but he is satisfied that your client and his wife had been separate due to their own actions for some considerable period of time before either of them arrived in the United Kingdom. The Secretary of State is satisfied in this particular case that the need to maintain the effectiveness of the control of entry to this country for settlement outweighs the interference with your client's Article 8 rights.

14. In all the circumstances and having given the most careful consideration to all the matters raised on behalf of your client, the Secretary of State concludes that the allegation that your client's return to Germany would breach his human rights is manifestly unfounded. He accordingly certifies to that effect pursuant to Section 72(2)(a) of the Immigration and Asylum Act 1999."

7

The Claimant's solicitors responded on the same date. They said that they were instructed to seek a judicial review of the Secretary of State's decision, and they asked for confirmation that they would have five working days to lodge the judicial review claim and to serve details on the Treasury Solicitor. They added:

"Secondly as you may be aware our client is to attend the Immigration Service on Wednesday 27 th. We would be obliged if you would confirm that he will not be taken into custody. We will also be directing this request to the Immigration Service since they have a primary role in that connection. Our client had closely observed immigration control since seeking asylum in this country. He now has his wife to care for. Her asylum application is ongoing in the sense that she has appeal proceedings. Finally our client has every reason to co-operate as we are advising him that he has reasonable prospects of succeeding in his review and thereafter in appeal proceedings. There is no reason to suppose that our client is at risk of absconding."

8

At the same time, the Claimant's solicitors wrote to the Dover Ports Surveillance Team to whose offices the Claimant had been required to report on Wednesday 27 February 2002. They enclosed a copy of their letter to the Home Secretary, and stated:

"We would be grateful if in these circumstances you would advise us whether it is necessary for our client to attend at your offices on Wednesday as currently required. If this appointment is still necessary please advise us of the reasons for this particularly given that there are to be ongoing proceedings."

9

The Ports Surveillance Team replied on 26 February 2002:

"We note that you intend to seek Judicial Review on behalf of your client.

Nonetheless we still require your client to attend the appointment on 27 th February as a condition of Mr Kalaichelvan's temporary release to this country.

With regard to detention, this can only be decided on the actual day of the interview."

10

The Claimant duly attended at Dover on 27 February 2002, accompanied by a representative of his solicitors. He was interviewed. The immigration officer decided to detain him. The notice to detainee form...

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