R Nhamo v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SALES |
| Judgment Date | 14 February 2012 |
| Neutral Citation | [2012] EWHC 422 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/13059/2010 |
| Date | 14 February 2012 |
[2012] EWHC 422 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Sales
CO/13059/2010
Ms G Kiai (instructed by Wilsons LLP) appeared on behalf of the Claimant
Miss J Anderson (instructed by Treasury Solicitors) appeared on behalf of the Defendant
(As Approved)
Introduction
This is an application for Judicial Review in relation to a deportation order made by the Secretary of State dated 22nd January 2010 and reaffirmed by a decision dated 3rd February 2011. Specifically, the claimant challenges the certification of her asylum and human rights claims by the Secretary of State under section 94 of the Nationality Immigration and Asylum Act 2002 in relation to that deportation order, as clearly unfounded.
The Secretary of State's case is that the claimant is a South African national, who, despite claims raised by her that she would be destitute in South Africa if returned there, could safely be returned to South Africa without violation of any of her Convention rights under the Human Rights Act and without violating her rights under the 1951 Refugee Convention to protection against persecution in a foreign state.
The claimant, on the other hand, does not now contend that if she is removed to South Africa there would be any violation of her rights under the Human Rights Act or the 1951 Convention while she was in South Africa. She maintains, however, that the South African authorities have rejected the suggestion that she is a national of South Africa. In those circumstances, she submits, by reference to the familiar authorities as to the low threshold for judicial review of a certificate under Section 94—in particular as set out in The Queen v Secretary of State for the Home Department ex parte Thangarasa & Yogathas [2002] 3 WLR 1276, House of Lords, especially at paragraphs [14] and [34]—that it cannot be said that the allegation that she is not a South African national is bound to fail.
The significance of this issue, the claimant says, is that she has a reasonably arguable case, which ought to be ventilated by way of an in-country appeal, to the effect that she is stateless, that therefore the Secretary of State should consider whether she could be removed to her country of habitual residence, which is Zimbabwe, and that the proper conclusion ought to be that she cannot safely be removed there. Therefore, she has a reasonable prospect on such an appeal of being granted refugee status. She points out that the Secretary of State has never made any finding that it would be safe to send her to Zimbabwe.
The Secretary of State, on the other hand, maintains that the claim that the claimant is not of South African nationality is clearly without substance and must fail.
The claimant also seeks judicial review of the Secretary of State's decision to continue to make attempts to persuade the South African authorities that the claimant is a South African national and to accept therefore that she can be returned to South Africa. She seeks a declaration that she is not removable to South Africa. She also seeks a mandatory order that the Secretary of State reconsider her asylum claim with reference to Zimbabwe.
At an earlier stage in the proceedings the claimant also sought to maintain a judicial review claim in respect of the certification of her asylum claim by reference to her rights under Article 8 of the ECHR, but that claim has been abandoned. The claimant also at an earlier stage sought to maintain a claim for damages for unlawful detention, but that claim too has been abandoned.
The factual background
According to the claimant, she was born in South Africa in 1972 but moved to Zimbabwe when she was aged three. Her maiden name was Mandela. Her birth mother stayed behind in South Africa. In Zimbabwe, she married a Zimbabwean national in 1996. Her husband and her two children continue to live there.
In 2004 the claimant entered the United Kingdom using a South African passport, on the basis of a six months visitor's visa. However, she was found to have in her possession a forged letter purporting to grant her entry status in the United Kingdom. She was therefore removed to South Africa on about 26th April 2004.
In about November 2004 the claimant managed to re-enter the United Kingdom, travelling using a South African passport and one-year travel document issued by the South African authorities. She worked in the United Kingdom without permission.
On 17th September 2009 the claimant was encountered on an enforcement visit and detained with a view to her removal to South Africa. At her screening interview that day she claimed asylum. She gave her nationality as South African, but explained that she had a husband and two children in Zimbabwe, where she was resident. She had a Zimbabwean identity card with her as well as her South African passport. She also handed over her marriage certificate. She confirmed that her South African passport, which had been seized, was her own national passport. At the interview she said: "I cannot live in South Africa as I don't know anyone there". She also said that the political situation in Zimbabwe was not good.
On 7th October 2009 an asylum interview was conducted with the claimant. She said that her family were Mandela and they had had to migrate to Zimbabwe in 1975 because of apartheid in South Africa at the time. She said she sent money back to her family in Zimbabwe. She referred to problems she might face if she were sent to Zimbabwe.
On 16th November 2009 the claimant was convicted at Luton Crown Court for the possession and use of a false instrument (not her South African passport), in relation to her immigration and working in the United Kingdom and was imprisoned for 12 months.
On 27th November 2009 the claimant's asylum application was refused and certified as clearly unfounded. The claimant was unrepresented at that stage. She attempted to appeal, but the tribunal ruled that, by virtue of the certification, it had no jurisdiction.
In early 2010 the claimant applied to go on the Facilitated Return Scheme to be sent to South Africa and was accepted on to that scheme. Shortly thereafter she decided that had she did to want to go to South Africa and was removed from the scheme. On 22nd January 2010 the deportation order was issued in relation to her.
From that point it appears that the Secretary of State was interested in examining two possible destinations to which she might be removed from the United Kingdom: South Africa and Zimbabwe.
In a detention review dated 17th May 2010 it was recorded that the claimant stated on 6th March 2010 that she wished to return to Zimbabwe as that is where her family resided and she had lived there most of her life. The review noted that she has not claimed to be Zimbabwean national, although there are copies of the documents on the port file relating to an application for national registration in Zimbabwe, with a copy of a marriage certificate and two birth certificates for her children, which would suggest that she has family there as claimed.
Miss Kiai, for the claimant, sought to place considerable weight upon the reference to an application for national registration in Zimbabwe in this document. However, I am satisfied on a review of the papers before me that that is a reference to the national identity documentation in relation to the claimant with respect to Zimbabwe, and there is no evidence, whether by a witness statement from the claimant or otherwise, to suggest that she has ever made a formal application to acquire Zimbabwean nationality.
There is a further document on file dated 17th June 2010, stating that the UK authorities' application to the South African High Commission for an emergency travel document in relation to the claimant had been refused, with the High Commission stating as a reason for refusal that the applicant is not a South African national.
The UK authorities, however, on 26th August 2010, sent the South African High Commission the claimant's South African passport, in effect inviting the High Commission to re-examine the circumstances of her case once again.
The internal Home Office documents indicate that on 3rd September 2010 an email had been received from the South African High Commission, advising:
"Initial enquiries into citizenship of this subject show that she acquired RSA [Republic of South Africa] citizenship fraudulently. The South African High Commission are awaiting further confirmation from their head office. As soon as they have this information they will inform the UK authorities."
In a further entry dated 30th September 2010 it was noted that a further response had been received from the High Commission, confirming that the subject is not entitled to South African citizenship but saying that the relevant South African official wants to have a face-to-face interview with the subject. The request for an interview suggested that the matter was not regarded as finally closed by the South African High Commission.
The interview took place on 11th October 2010. The Home Office files contain the entry that an e-mail response had been received from the High Commission on 29th October, requesting the claimant to provide further documentary proof of citizenship. So, again, it seems that the matter was not regarded as completely closed so far as the South...
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