R Niquepa-sarmiento v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | THE DEPUTY JUDGE (David Elvin QC),THE DEPUTY JUDGE |
| Judgment Date | 31 August 2011 |
| Neutral Citation | [2011] EWHC 3812 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2048/2011 |
| Date | 31 August 2011 |
[2011] EWHC 3812 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
David Elvin, QC
(Sitting as a Deputy High Court Judge)
CO/2048/2011
Mr Michael Harris (instructed by Cleveland & Co) appeared on behalf of the Claimant
Mr David Blundell (instructed by Treasury Solicitor) appeared on behalf of the Defendant
Introduction
In this application, the claimant, who is a national of Colombia, seeks judicial review against the decision of the Secretary of State to deport him to Colombia on 8 December 2010. He seeks relief, firstly, in the form of a declaration that the removal on 8 December was unlawful and, secondly, a mandatory order that the defendant take all practical steps to return the claimant to this jurisdiction forthwith.
This application came before me as a rolled-up hearing by order of HHJ Jarman QC on 24 June 2011, at a time when the issue differed from the grounds now advanced before me. However, since the compass of the argument before me this morning has in effect dealt briefly and succinctly with arguments both for permission and substantive relief, it seemed sensible to continue with this case as a rolled-up hearing. The defendant did not object, and I will return to the amended grounds shortly.
The facts
The claimant came to the UK with his wife and, at that time, two children in December 1993 and, following arrival here, claimed asylum. The asylum claim failed, but the claimant and his family were granted leave to remain. A third child was born in August 2002 and eventually in 2005 the claimant's family were granted indefinite leave to remain.
On 2 December 2008, the claimant's wife and the two younger children were granted British citizenship, and on 10 February 2010, the claimant's eldest child was also granted citizenship. Of those children, two are now adults, and only the youngest child remains a minor. On the limited information I have, it appears that the claimant is currently estranged from his wife and youngest child.
On 23 January 2009, the defendant was sentenced at Harrow Crown Court to four years' imprisonment following conviction of five counts of sexual assault on a young girl under 13 years of age. In relation to the five counts on which the claimant was convicted, I note that the sentence for three of them was the maximum sentence permissible, which reflects the very serious and distressing nature of the offending. While the claimant was a serving prisoner, the defendant determined to deport him pursuant to the mandatory provisions for deportation, given the term of the sentence and the nature of the offences. Notice of the decision was dated 26 October 2010, and was served on the claimant on 12 November.
I do not propose to recite the decision at length, but note that it sets out, as one would expect, the claimant's immigration history. It sets out at length the sentencing remarks of the trial judge at Harrow, no doubt in order to reflect the public interest reasons for deporting the claimant, and to reflect the very serious nature of the offending.
The decision went on to consider Convention reasons, dealing firstly with Article 8, and under the heading "Family Life" dealt with the duty to protect the interests of children, considered both private life and interference with private and family life and, I note, towards the end of this section, following a repeat reference to the term of imprisonment for the offences I have described, the letter said this:
"It is considered that your estranged wife has been able to care for and support her children while you are still serving your custodial sentence. It is therefore expected that she would be able to continue to care for herself and her children without support from you. We conclude that your removal will have little impact on your children and they can continue their relationship with you through telephone contact and visits."
As a result of this and the other considerations set out at some length, the Secretary of State concluded that deportation would not be in breach of Article 8. The deportation notification, as is common, notified the claimant of his right to appeal under section 28(3)(a) and section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002. I also note that the letter stated in the usual form that if the claimant did not appeal, or the appeal was made and was unsuccessful, the deportation order would be enforced.
Under rule 7 of the Asylum and Immigration Tribunal Procedure Rules 2005, as amended, the claimant had five working days in which to appeal to the First Tier Tribunal, which meant that the deadline for appealing fell on about Friday, 19 November 2010. The claimant, who is not fluent in English, did not realise the significance of the notice, and it took some time for the claimant to bring the notice to the attention of his solicitors.
The documentation was sent to the claimant's solicitors on 29 November, they having impressed on the claimant the need for urgency in appealing, and this enabled them to lodge an appeal on his behalf with the First Tier Tribunal. The notice was sent under cover of a letter of 1 December 2010, which was also served on the defendant on the same day, and it enclosed, amongst other things, the appropriate appeal notice, the grounds of appeal, and a statement of truth from the claimant to which I will return.
The appeal form noted that there had been delays, raised grounds of appeal principally under Articles 3 and 8 of the Convention, and stated that the claimant wished to give oral evidence. The grounds of appeal, which were appended to the notice, specifically accepted that it was necessary to extend time for appealing, and asked that time be extended, and set out five reasons why time should be extended. As I have mentioned, the documents also included a statement of truth signed by the claimant and dated 30 November, which verified the facts upon which the extension of time to make an appeal was sought, and set out that the claimant was not fluent in English at all:
"5. I sent the letter to my solicitor, together with some other letters which I received or I wrote to try and explain my case and my situation with my family.
6. He phoned me today to explain to me that we had five working days from the date the letter was served on me to lodge the notice and grounds of appeal. I have just been advised by my solicitor that the letter was served late on me and I sent it late to his office as well, so I have missed the deadline to lodge the notice and grounds of appeal.
7. He also explained to me that I had to sign a statement of truth explaining what has happened, and also to request an extension of time to lodge the notice and grounds of appeal.
8. Honestly, I did not know the importance of this letter. As I stated earlier, I am not fluent in English, and although I read the letter, I did not know that it was so important.
9. I was able to post full documentation on the notice of the decision to my solicitor late last week. I knew that my sentence will come to an end in January 2011, and I did not know that the UKBA will serve deportation notice on me at this stage."
Accordingly, as at 1 December, it seems plain to me that the claimant had done all that was necessary in order to apply to the FTT for permission to appeal out of time. Indeed, this is not disputed by Mr Blundell, who has represented the Secretary of State before me.
On the same day, the defendant set removal directions for 8 December. On 2 December, the claimant's solicitors notified the defendant about the lodging of the appeal and provided the documents, and their letter requested that the defendant not proceed with deportation. The letter asked if the Border Agency could set aside or revoke the deportation order pending the determination of the immigration judge.
On 6 December 2010, the FTT issued a decision that the appeal was out of time, and noted:
"If you contend that either notice of appeal was given in time or there were special circumstances for failing to give the notice of appeal in time which could not reasonably have been stated in the notice of appeal, you may file written evidence in support of that contention.
Such written evidence may be filed no later than 13 December 2010.
Evidence filed after the expiry of these time limits will not be considered.
When the notice was given out of time, the tribunal may extend the time for appealing, if satisfied that by reason of special circumstances it would be unjust not to do."
This decision was sent on 6 December under cover of a letter from the Border Agency to the claimant's solicitors, and noted as follows:
"You state that your client has an appeal pending before the tribunal. However, the tribunal issued the attached notice today indicating that your client's appeal was lodged out of time. There is no evidence that your client has sought to challenge that decision, and therefore the UK Border Agency (UKBA) intends to proceed with his removal."
It is clear from both the notice from the FTT and from the Border Agency's letter that it simply had not been understood or appreciated that the notice of appeal and the grounds of appeal had contained the application and the supporting evidence for permission to lodge an appeal out of time. It is clear from the letter of 6 December, in my judgment, that this misunderstanding...
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