R (on the Application of AB) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sweeney J |
| Judgment Date | 07 November 2016 |
| Neutral Citation | [2016] EWHC 2751 (Admin) |
| Date | 07 November 2016 |
| Court | Queen's Bench Division (Administrative Court) |
[2016] EWHC 2751 (Admin)
ADMINISTRATIVE COURT
Sweeney J
Mr G Lee instructed by Savic & Co, for the Claimant;
Ms J Lean instructed by the Government Legal Department, for the Secretary of State.
Odelola v Secretary of State for the Home DepartmentUNK [2009] UKHL 25; [2009] 1 WLR 1230; [2009] 3 All ER 1061; [2010] Imm AR 59; [2009] INLR 401
R v Immigration Officer at Prague Airport and Another, ex parte European Roma Rights Centre and OthersUNK [2004] UKHL 55; [2005] 2 AC 1; [2005] 2 WLR 1; [2005] 1 All ER 527; [2005] Imm AR 100; [2005] INLR 182
R (on the application of FH and Others) v Secretary of State for the Home DepartmentUNK [2007] EWHC 1571 (Admin); [2007] All ER (D) 69
SR (Algeria) v Secretary of State for the Home DepartmentUNK [2015] EWCA Civ 1375; [2016] INLR 691
Asylum and Immigration Appeals Act 1993, section 2
Directive 2011/95/EU (“the Qualification Directive”), Articles 2, 4(1) & 9–13
Diective 2005/85/EC (“the Asylum Procedures Directive”), Articles 3(1), 7 & 10(1)
Immigration Rules HC 395 (as amended), paragraphs 327, 328, 333, 333A, 333C, 334 & 336
Refugee Convention 1951, Articles 1A(2), 1F(a), 31(2), 32, 33 & 40(1)
Refugee or Person in Need of International Protection (Qualification) Regulations 2006, regulation 2
Immigration — Home Office policies and concessions — interpretation of paragraph 334(i) of the Immigration Rules — applicant for refugee status — requirement to either be in the United Kingdom or at a port in the United Kingdom — date of the Secretary of State's decision
The Claimant arrived in the United Kingdom on a visitor's visa in 2006 with his passport from his African country of nationality. The Secretary of State for the Home Department refused his application for asylum in 2007. He was, however, granted consecutive periods of exceptional leave to remain during which he travelled to and from the United Kingdom. Although the Claimant's second application for asylum was initially refused on the same grounds, the Secretary of State undertook to make a fresh decision following his appeal to the Court of Appeal. The Claimant was granted further exceptional leave to remain and was issued with a Certificate of Travel (“CoT”), limited to the United States, because his passport had been mislaid by the UK Borders Agency. In January 2012 the Administrative Court ordered that he was to be issued with a geographically unrestricted CoT, valid until February 2012. The Claimant left the United Kingdom again and, whilst still abroad, the Secretary of State informed him that his passport had been found and could be exchanged for his CoT. He confirmed that he did not hold any other passports or travel documents. Upon the Claimant's return to the United Kingdom in March 2012, he returned the CoT, but his passport was not given back to him and it expired in May 2012.
In June 2012 the Secretary of State finally made a fresh decision refusing the Claimant's asylum application on the basis that he could apply to re-locate to another African country. The Claimant left the United Kingdom again in July 2012 using a Ugandan passport without informing the Secretary of State. He was also in possession of a Malian passport with his photograph, but in another name. Shortly before the Claimant's appeal against the fresh refusal of his asylum application, the Secretary of State announced that she would re-make her June decision because it had proceeded in error on the basis that the Claimant was an illegal entrant. The Claimant's exceptional leave to remain expired while he was outside the United Kingdom. In August 2012 the Secretary of State enquired whether the Claimant was in the United Kingdom at that time. The Claimant responded that he was not and explained that he had been issued in confidence with a travel document by a “friendly state” for political reasons. The Secretary of State notified the Claimant in September 2012 that, because he was no longer in the United Kingdom, she was not in a position to take forward his asylum claim and that, because of his actions, a further decision could not be made.
Paragraph 334 of the Immigration Rules HC 395 (as amended) provided five matters of which the Secretary of State had to be satisfied in order to grant an applicant refugee status. Under subparagraph (i) of paragraph 334 the asylum applicant had to be either in the United Kingdom or at a port in the United Kingdom. The Claimant's application for relief was dismissed by the Court of Appeal. Consequently, he challenged the Secretary of State's decision by way of judicial review.
Before the Administrative Court, the Claimant submitted that the true construction of paragraph 334 was that, in order to make a decision as to whether to grant him refugee status, the Secretary of State needed only to be satisfied that he was in the United Kingdom when he made his application for asylum in 2006, which he had been. The Secretary of State submitted that, in order to have been able to make a decision in September 2012, she had to be satisfied that the Claimant was, at that time, in the United Kingdom. She also argued that the circumstances of the Claimant's departure in 2012 gave rise to an implied withdrawal of his application for the purposes of paragraph 333C of the Rules.
Held, refusing the application:
(1) The focus of the Refugee Convention 1951 was on the treatment of refugees within the receiving State. Hence the protection obligations imposed by the Convention upon contracting States concerned the status and civil rights to be afforded to applicants and refugees who were within the contracting States: R v Immigration Officer at Prague Airport and Another, ex parte European Roma Rights Centre and OthersUNK[2004] UKHL 55 applied. In September 2012 the combination of the Refugee Convention, the Rules and section 2 of the Asylum and Immigration Appeals Act 1993 provided a coherent framework in relation to asylum applications in which, amongst other things, an applicant had to be at a port of entry to the United Kingdom, or in the United Kingdom, in order to be able to make an asylum application. There was an obvious potential inconsistency between applying for the protection of a country, as part of which travel and identity documents had to be surrendered, and travelling away from that country during the course of the application (paras 70 – 73).
(2) Truly construed, paragraph 334(i) of the Rules clearly required the Secretary of State, at the time of considering a decision on an asylum application, to be satisfied that the applicant was then in the United Kingdom, or had then arrived at a port in the United Kingdom. When the Secretary of State came to consider her decision in relation to the Claimant's application in September 2012, the Claimant was not then in the United Kingdom, or at a port of entry in the United Kingdom. When he had exceptional leave to remain, the Claimant, whether using his original passport or a CoT, was permitted by the Secretary of State to travel abroad for relatively short periods. That was done in the exercise of the Secretary of State's discretion and thus raised no question of implied withdrawal of the Claimant's asylum application (paras 74 – 76).
(3) The Claimant's departure in July 2012 was very different. Although he still had exceptional leave to remain, his original passport had expired and he had no CoT. Unknown to the Secretary of State, he had acquired two other passports, from Uganda and Mali, had left the United Kingdom using the Ugandan passport without notice, and was still abroad when his exceptional leave to remain expired. He clearly chose to obtain the two passports and not to reveal his possession of them; to leave without notice for his own reasons; to use the Ugandan passport to do so; and not to try to return before his exceptional leave to remain had expired. Such conduct was clearly capable of being treated, under paragraph 333C, as being an implied withdrawal of his application. Whilst the language which had been used in the Secretary of State's letter to the Claimant in September 2012 was more akin to paragraph 333C, it had, in effect, been a decision that the Claimant's absence from the United Kingdom, or from a port in the United Kingdom, as required by paragraph 334(i), had meant that his application had necessarily failed. That reason had been extensively explored in the instant case and was undoubtedly correct. Accordingly, it was not appropriate to order the Secretary of State to make the decision again more formally (paras 77, 78 and 80 – 82).
Mr Justice Sweeney:
[1] By permission of Carr J, granted (together with an anonymity order) at an oral hearing on 10 September 2013, the Claimant applies for judicial review of the decision of the Defendant, made on 21 September 2012, to refuse to make a decision on the Claimant's extant asylum application.
[2] The claim was stayed by consent in May 2014 – pending the outcome of the Claimant's separate appeal to the First-tier Tribunal against the decision of an Entry Clearance Officer in Nairobi, made in November 2013, to refuse his claim of entitlement to enter this country as the spouse of a person settled here. The stay was agreed because it was anticipated that this claim would be rendered academic if the appeal was allowed. In the event, on 12 October 2015, the appeal was allowed by the First-tier Tribunal, but the Entry Clearance Officer then sought permission to appeal and it is not clear how long the appeal process will take. Hence the Defendant did not oppose the Claimant's application to set aside the stay, which I grant.
[3] The central issue in the determination of this claim is thus the true construction of paragraph 334 in Part 11 of...
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