R (on the application of Konan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins,MR JUSTICE COLLINS |
| Judgment Date | 21 January 2004 |
| Neutral Citation | [2004] EWHC 22 (Admin) |
| Docket Number | Case No: CO/4926/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 January 2004 |
[2004] EWHC 22 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Hon Mr Justice COLLINS
Case No: CO/4926/2002
Ms Stephanie Harrison (instructed by Messrs Fisher Meredith) for the Claimant
Mr Steven Kovats (instructed by Treasury Solicitor) for the Defendant
The claimants are nationals of the Ivory Coast. They are mother and daughter. The mother, Jacqueline, is now 29 and her daughter, Thelma is 2, having been born on 18 April 2001 shortly after her mother arrived in this country on 2 February 200Permission to pursue this claim was granted by Mackay J on 3 February 2003 on an oral application following a refusal of permission on the papers. The claim challenged the defendant's refusal to accept that the mother had made a fresh claim for asylum and the issue of a certificate under s.73 (8) of the Immigration and Asylum Act 1999 in respect of the human rights claims made by her. It also challenged the failure to respect Thelma's rights as the child of an EEA national, her father being French. Further, the claimants had been detained from 10 June 2002 until released on bail on 23 December 2002 and that detention was said to have been unlawful.
On 22 May 2003 the defendant agreed to withdraw the certification under s.73 (8) and to accept that a fresh asylum claim had been made which, if rejected, would attract a fresh right of appeal. He also agreed to pay costs. But he did not accept that the detention of the claimants had been at any time unlawful. That is the issue which I have to determine. It has been agreed that, if I decide that the detention or any part of it was unlawful, damages should be considered later.
When the claim was before me on 16 October 2003, it was recognised that two decisions of the Administrative Court, namely R (Nadarajah) v Secretary of State for the Home Department [2002] EWHC 2497 Admin and R (Amirhanathan) v Secretary of State for the Home Department [2003] EWHC 1107 Admin were of fundamental importance in deciding whether the detention was unlawful. Both these cases were under appeal. The appeals were due to be heard shortly and, in the circumstances, it was obviously sensible for me to await the outcome of the appeals before giving this judgment. The appeals were heard together on 10 and 11 November 2003 and judgment was given by the Court of Appeal on 8 December 2003 – see [2003] EWHC Civ 1768. I had informed counsel that I would consider any written representations received within 7 days of the publication of that judgment. I am not in the least surprised to have received no representations: the judgment, as will become clear, speaks for itself. But this explains the delay in giving this judgment.
This is an unfortunate story of very poor administrative decisions compounded by less than competent representation of the claimants. It was not until the claimants instructed Messrs Winstanley Burgess (who sadly, no longer deal with immigration cases) in November 2002 that this case was properly explained.
I must set out, as briefly as possible, the history. It is a cautionary tale since it shows that decisions of the defendant's officials and the appellate authorities can be wrong and that there is a need for a judicial assessment. I say that because the defendant finally recognised that the claimants should be permitted to remain in this country, certainly for a time, since Thelma's father was indeed a French citizen who had rights of entry and residence here. It was also accepted that Jacqueline had made what was regarded as a fresh claim. If the possibility of judicial review had not existed the claimants would wrongly have been returned to the Ivory Coast.
Jacqueline entered the United Kingdom by means of a false French passport which, in accordance with what had been agreed, she posted back to the owner. She did not claim asylum immediately. The claim was made through solicitors on 7 February 2001, some 5 days after her arrival. Her family was well off and she did not need to leave for economic reasons. She had joined the RDR party, which was opposed to that in power. In October 2000 the RDR was excluded from presidential and legislative elections and in January 2001, following unrest resulting from what was regarded as political persecution, she was arrested. The conditions of her detention were singularly unpleasant. After 3 days, she was released when it was realised that she was pregnant. She claimed that on 27 January 2001, she leant that gendarmes had come to her home to arrest her. She had been out. This led to her decision to flee the country.
On 9 June 2001, her claim was rejected. In essence, the defendant took the view that membership of the RDR was not of itself likely to lead to persecution and the manner in which entry to the U.K. had been achieved indicated a degree of planning coupled with a determination to enter the U.K. dishonestly inconsistent with a genuine need for protection from persecution. She appealed to an adjudicator. Her appeal was heard on 1 November 2001 and was dismissed.
In addition to the matters she had relied on in making her claim, Jacqueline claimed that a few days before the hearing she had learnt from her sister that her uncle had been arrested and accused of plotting a coup. The uncle in question (in reality a cousin who was regarded as an ‘uncle’) was a Captain Fabien Coulibaly who had been a bodyguard to the ex-president. The adjudicator decided that Jacqueline had fabricated the account of the gendarmes coming to her house in order to enhance her claim. Further, the adjudicator found that the account of the arrest of her ‘uncle’ was altogether too vague. He concluded (Paragraph 10.6 of his determination): -
“It is clear to me that the appellant has no reason to believe, even if there has been an attempted coup, that her uncle was involved in any way. Her request to have time to find and produce such evidence to me is not one to which I am prepared to accede. She cannot even remember when it was she telephoned her sister or when it was that her uncle's claimed arrest took place”.
She sought leave to appeal to the Immigration Appeal Tribunal. The grounds are not before me, but no further steps had apparently been taken to show that there had been an attempted coup in which Captain Coulibaly had indeed been arrested. In those circumstances, it is hardly surprising that her application was refused since the adverse credibility findings seemed well founded.
Thelma had been born on 18 April 2001. Her father is a French national called Theodule Duranty. He had visited the Ivory Coast on a number of occasions and in the summer of 2000, while there, he had formed a relationship with Jacqueline. He left the Ivory Coast for London in July 2000, but used to speak with Jacqueline on the telephone regularly until November 2000 when he reacted badly to the information that she was pregnant. In March 2001 she succeeded in meeting up with him again. He attended Thelma's birth, but was unwilling to be involved in the immigration or asylum claims made by Jacqueline. For that reason, he demanded that he should not be named as father on the birth certificate and that the fact that he was Thelma's father should not be raised in Jacqueline's appeals. However, after Thelma's birth, the relationship became firmer and he saw Jacqueline and his daughter more and more regularly until she was dispersed by NASS to Wigan in August 2001. Thereafter he visited as much as he could. Jacqueline had been granted temporary admission subject to conditions with which she had always complied.
On 17 April 2002 Jacqueline's then solicitor wrote to the Home Office enclosing a letter from her mother dated 5 March 2002 in which she said that Jacqueline's life would be in danger were she to return to the Ivory Coast. The letter was written in French. The solicitors said they were submitting a fresh claim for asylum based on the new evidence. This letter was overlooked by the Home Office and on 10 June 2002 it was decided that the claimants should be detained on the ground that their removal from the U.K. was imminent. On 11 June 2002 removal directions were issued for 18 June 2002. Meanwhile, on 11 June the claimants’ solicitors wrote to the Home Office claiming that they should be allowed to remain because Theodule Duranty, Thelma's father, was a French national currently living in the U.K. and to remove the claimants would breach Article 8 of the European Convention on Human Rights. There was also a claim based on Article 3 that Thelma might suffer genital mutilation. That was manifestly ill-founded and has not since been raised. Nonetheless, there were two outstanding claims which had not been determined and so on 17 June 2002 the solicitors requested deferral of the removal directions and reasonable time to lodge a judicial review application.
On 18 June 2002 the defendant rejected the claims to remain. In relation to Jacqueline's mother's letter, it was said that the adjudicator's conclusions should stand. The defendant's official continues: -
“The Secretary of State also notes that you have submitted a letter purporting to be from your client's mother which you say supports her claim that her life is in danger. As this letter is in French and as you have provided no translation the Secretary of State is unable to attach any weight to it as its contents are unknown. The Secretary of State takes the view that the onus is on your client to show that a document she seeks to rely upon can be relied on”.
I find this...
To continue reading
Request your trial
-
AYZ v The Home Office
...as the Hardial Singh principles or limitations. As set out by the Court of Appeal in R (I) v Secretary of State for the Home Department [2003] INLR 196 at 46 and approved by the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245, 264H–265B, the four Hard......
-
The Secretary of State for the Home Department v JM (Zimbabwe)
...for the minority view of Keene LJ in A and the judgment of Simon Brown LJ in the earlier case of R (I) v SSHD [2002] EWCA Civ 888; [2003] INLR 196, to the effect that the refusal to return voluntarily, in cases where the risk of absconding cannot be inferred from that refusal, is of limited......
-
CO/2899/2015 R Khaled and Others v Secretary of State for the Home Department
...R v. Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 and distilled by Dyson LJ in R (I) v. SSHD [2002] EWCA Civ 888, [2003] INLR 196 at [46] are equally applicable to Schedule 2 cases: and were approved in R (Lumba) v. SSHD [2011] UKSC 12, [2011] 2 WLR 671, see at [22]......
-
K.m. For Judicial Review Of A Decision Of The Secretary Of State For The Home Department To Detain The Petitioner
...Hardial Singh 1984 1 WLR 704 at 706. They have been distilled into four principles by Dyson LJ in R(I) v Home Secretary 2002 EWCA Civ 888 2003 INLR 196 at paragraph 46 which are as follows:- (i) "The Secretary of State must intend to deport the person and can only use the power to detain fo......
-
SEPARATE BUT UNEQUAL: IMMIGRATION DETENTION IN CANADA AND THE GREAT WRIT OF LIBERTY.
...22, [2012] 1 AC 245. See also R (on the Application of I) v Secretary of State for the Home Department, [2002] EWCA Civ 888 at para 47, [2003] INLR 196. The law in the United States is in a state of flux. In 2001, the Supreme Court of the United States (SCOTUS) held that, in some circumstan......