R Onykwere v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hamblen |
| Judgment Date | 03 July 2015 |
| Neutral Citation | [2015] EWHC 2501 (Admin) |
| Date | 03 July 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/17333/2013 |
[2015] EWHC 2501 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Hamblen
CO/17333/2013
Mr D Jones (instructed by Sutovic and Hartigan) appeared on behalf of the Appellant
Miss S Reeves (instructed by Government Legal Department) appeared on behalf of the Respondent
Introduction
On 25 October 2013, the defendant made a deportation order in respect of the claimant. On 14 November 2013, the claimant was detained when he reported to the UKBA.
On 15 November 2013, the defendant served the deportation order on the claimant. On 27 November 2013, the claimant submitted a letter setting out the reasons why he should not be deported and also submitted a pre-action protocol letter.
On 29 November 2013, the defendant refused the claimant's application to have his deportation order revoked and certified it as clearly unfounded, thereby granting him an out of country right of appeal.
On 6 December 2013, the claimant issued a claim for judicial review seeking to challenge the certification decision made on 29 December 2013 and the lawfulness of his detention.
On 17 February 2014, the claimant made further written submissions to the defendant. On 21 February 2014, Phillips J refused to grant the claimant permission to apply for judicial review on the papers.
On 10 April 2014, the claimant made further written submissions to the defendant. On 8th May 2014, he was granted bail with reporting and tagging restrictions.
On 3 June 2014, the defendant rejected the claimant's latest submissions and refused to accept that they constituted a fresh asylum and/or human rights claim.
On 14 May 2015, amended grounds of judicial review were filed on behalf of the claimant which challenged the refusal to accept the April submissions as being a fresh claim and also maintained the arguments in support of the original application.
This is, therefore, a case in which there has been considerable delay but it would appear that the court considered and dealt with that question at the time that it gave directions for the present hearing of the outstanding applications.
The claimant's immigration history
The claimant has a long and involved immigration history.
He claims to have arrived in the United Kingdom in December 2003 using a false French passport.
On 10 January 2015, he was convicted of theft under the name Monsanto Sumbu Moto and sentenced to 14 hours' Community Service.
On 24 March 2005, he was arrested for attempted fraud, under the same name. He was fingerprinted and was found to have the alias Kuectche Moumbe.
On 11 May 2005, he was convicted of three counts of forging a document which was other than a prescription for a scheduled drug. He was sentenced to 17 months' imprisonment. He did not appeal against his conviction or sentence.
On 20 May 2005, he was convicted under the name of Monsanto Sumbu Moto for possessing an insurance document with intent to deceive. He received a £70 fine and was sentenced to one day in a detention centre.
On 1 December 2005, the defendant made directions to remove the claimant from the United Kingdom in the name of Alain Meboe.
On 6 December 2005, he applied for asylum in the name of Alain Antoine Kuectche Moumbe and the defendant cancelled the removal directions. On 4 January 2006, the defendant refused the claimant's asylum claim.
On 15 February 2006, the claimant's representatives submitted a birth certificate which showed his true identity as being Jude Okilo Onykwere, a male national of Cameroon, with a date of birth of 7 November 1975.
On 4 May 2006, the claimant was notified of a refusal of his asylum claim. He appealed against that in June 2006. On 14 June 2006, the immigration Tribunal found that the claimant had not been served with 4 January 2006 asylum decision and the defendant decided to reconsider that claim.
In January 2008, a fingerprint check was carried out which confirmed the claimant was the same person as Monsanto Sumbu Moto and Alain Antoine Meboe.
On 2 November 2008, the claimant's son was born to his British partner.
On 26 November 2010, he was notified that he was liable to be deported. On 22 December 2010, he submitted a completed questionnaire with supporting evidence that challenged his proposed deportation.
On 23 November 2011, he attended an asylum interview. On 8 March 2012, he was served with a joint asylum refusal and deportation decision dated 1 March 2012. On 23 October 2012, the claimant's appeal against his deportation decision was dismissed.
He had appealed on the basis that the deportation decision breached his rights under Articles 2, 3 and 8 ECHR. The First-tier Tribunal concluded amongst other things that the claimant lacked credibility. His asylum claim had immediately followed the decision to deport him and he had used a false name. His actions were at odds with those of a genuine asylum seeker.
Whilst the Tribunal accepted that the claimant had some sort of relationship with British wife, it found there was very little evidence about the strength of their relationship and not even an assertion by the claimant that he had paternal feelings towards his son.
The Tribunal concluded that it was the proximity of the appeal hearing which had prompted the claimant to increase his involvement in the life of his wife and son, rather than any long term commitment to the family unit.
On 12 December 2012, the claimant exhausted his appeal rights having applied unsuccessfully for permission to appeal to both First-tier and Upper Tribunals.
On 10 July, he submitted an application for further leave to remain. That was rejected on 2 December 2013, as it was said he had not provided passport photographs with his application.
On 24 October 2013, the defendant informed the claimant that he had in fact submitted the photographs, and advised him if he submitted a new application it would be valid from the date of his rejected application, but he did not submit a new application. Then, as already recorded, on 25 October 2013, the deportation order was made.
The Issues
The issues which arise may be summarised as being whether the defendant's certification of the claimant's asylum and human rights application as clearly unfounded under section 941 of the Nationality Immigration and Asylum Act 2002, as recorded on 29 November 2013 and maintained in her decision of 3 June 2014, was lawful, and whether the defendant's decision the claimant's representations made on 10 April 2014 were incapable of being a fresh claim was lawful.
In addition, there is an issue as to the lawfulness of the claimant's detention from 15 November 2013 until 7 May 2014.
Relevant principles
In relation to the two main issues, the relevant principles may be summarised as set out below.
In considering the issue of the lawfulness of the defendant's certification of the asylum and immigration claims as clearly unfounded, the relevant test is whether the claim is in fact clearly unfounded in accordance with the guidance provided in the decision of ZL [2003] EWCA Civ 25.
In that case, Lord Phillips MR, giving the judgment of the court, expressed the test in the following terms:
i. "58. If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded."
In considering the issue of whether the defendant wrongly refused to accept representations amounting to a fresh claim the relevant test is as set out in paragraph 153 of the Immigration Rules, namely:
i. "The submissions would amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content has not already been considered and taken together with the previously considered material created a realistic prospect of success and not withstanding its rejection."
Those principles have been considered a number in a number of decisions, in particular in the decision of the Court of Appeal in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495.
In that case, the court rejected the submission that it should follow the approach taken in the certification cases of coming to its own view on the strength of the asylum claim. It was held that:
i. "18. In borderline cases, particularly where there is doubt about the underlying facts, it would be entirely possible for a court to think that the case was arguable, but accept nonetheless that it was open to the Secretary of State, having asked himself the right question and applied anxious scrutiny to that question, to think otherwise; or at least that the Secretary of State would not be irrational if he then thought otherwise."
In AK (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 535 the Court of Appeal held that the question which the Secretary of State must ask himself is:
i. "23. Whether an Independent Tribunal might come down in favour of the applicant's asylum or human rights claim or consider be the new material together with the new material previously considered."
The correctness of the approach adopted in the WM (supra) decision has been confirmed by the Court of Appeal in MN (Tanzania), R (on the application of) v Secretary...
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Jude Okilo Onykwere v Secretary of State for the Home Department
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