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

JurisdictionEngland & Wales
JudgeLord Justice Laws,Lord Justice Thomas,Mr Justice Nelson
Judgment Date22 November 2005
Neutral Citation[2005] EWCA Civ 1363
Docket NumberCase No: C4/2002/2697 & C4/2003/2729
CourtCourt of Appeal (Civil Division)
Date22 November 2005
Between
Nadarajah
1st Appellant
Abdi
2nd Appellant
and
The Secretary of State for the Home Department
Respondent

[2005] EWCA Civ 1363

Before

Lord Justice Laws

Lord Justice Thomas and

Mr Justice Nelson

Case No: C4/2002/2697 & C4/2003/2729

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

Mr Raza Husain (instructed by Fisher Meredith Solicitors) for the 1 st Appellant

Mr Manjit Gill QC and Mr Sonali Naik (instructed by Messrs Wilson and Co) for the 2 nd Appellant

Mr Ashley Underwood QC and Miss Elisabeth Laing (instructed by the Treasury Solicitor) for the Crown

Lord Justice Laws

INTRODUCTORY

1

These two appeals both involve issues concerning Article 8 of the European Convention on Human Rights ("ECHR"), a policy of the Secretary of the State known as the Third Country Family Links Policy ("the Family Links Policy"), and the legal principle of legitimate expectation; though there are some other points in Abdi. In each case the Secretary of State issued a certificate pursuant to s.72(2)(a) of the Immigration and Asylum Act 1999 ("the 1999 Act") to the effect that the appellant's claim of violation of Article 8 was manifestly ill-founded. Such a certificate prevents an in-country appeal against a decision of the Secretary of State to remove or deport the entrant to another Member State of the European Union.

2

The appeal in Abdi is against the decision of Harrison J given in the Administrative Court on 5 December 2003, and is brought with permission granted by Dyson LJ on 3 March 2004. The appeal in Nadarajah is against the decision of Stanley Burnton J given in the Administrative Court on 2 December 2002, and is brought with permission granted by the judge below. Some points arising in Nadarajah have already been determined in this court, but what has been referred to as the policy issue remains; and on 29 March 2004 Dyson LJ ordered that the appeal on that issue in Nadarajah be heard with the appeal in Abdi.

3

It is convenient at once to set out ECHR Article 8 and s.72(2)(a) of the 1999 Act. As is well known Article 8 provides:

"(i) Everyone has the right to respect for his private and family life, his home and his correspondence.

(ii) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is 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."

It is unnecessary to recite the provisions of the Human Rights Act 1998 which require the courts to protect the rights guaranteed by the Convention and set out in the Schedule to the Act. S.72(2)(a) of the 1999 Act provides:

"72(1)……

(2) A person who has been, or is to be, sent to a member State….is not, while he is in the United Kingdom, entitled to appeal —

(a) under section 65 if the Secretary of State certifies that his allegation that a person acted in breach of his human rights is manifestly unfounded."

THE FACTS

NADARAJAH

4

The initial stages in the history of Nadarajah's case were sketched by Stanley Burnton J:

"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 Aitsegeur [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)."

5

This account needs a little expansion. The judge's statement that the Secretary of State sought to remove the appellant to Germany as a safe third country is a reference to a letter of 19 January 1999 by which the Secretary of State decided that the appellant was returnable to Germany pursuant to the practice set out in the Immigration Rules (HC 395 paragraph 345). By the same letter he notified the issue of a certificate under s.2(2) of the Asylum and Immigration Act 1996 to the effect (I summarise) that the appellant would not be persecuted in Germany, nor sent by the German authorities to another country "otherwise than in accordance with the [Refugee] Convention". This meant that the appellant's rights of appeal were restricted to an out-of-country appeal against the certificate. However, as the judge noted, his solicitors launched an application for judicial review of the decision to send him to Germany. That was unresolved when, on 20 November 2001, the Secretary of State withdrew the s.2(2) certificate and replaced it with a fresh certificate under s.11 of the 1999 Act, which is broadly to the same effect as s.2(2) of the earlier statute. I need not set it out. In the decision letter of 20 November 2001 it was stated:

"The Secretary of State is entitled by reason of section 11 of the 1999 Act to regard Germany as a place where a person's life and liberty is not threatened by reason of a Geneva Convention [sc. the Refugee Convention] matter, and as a place from which a person will not be sent to another country otherwise than in accordance with the Geneva Convention. The attached certificate certifies that Germany has accepted that under standing arrangements it is the responsible State in relation to your claim for asylum…"

6

The appellant's judicial review application relating to the decision of January 1999 was withdrawn on 23 January 2002. There has never been a challenge to the s.11 certificate. The judge's account continues as follows:

"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."

7

Nor did the solicitors' letter refer to the Family Links Policy. It seems they had no knowledge of it, either then or at the time of the Secretary of State's decisions of 19 January 1999 and 20 November 2001. Its potential engagement in the case arises because of the solicitors' reliance on the appellant's wife's presence in the United Kingdom. The policy was set out in a Home Office statement of 21 March 1991, headed "Safe Third Country Cases: Substantive Consideration in UK Because of Family Links":

"We recognise that a substantial area of discretion will need to be left in order to deal sensibly with individual...

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