R Owusu v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Her Honour Judge Walden-Smith |
| Judgment Date | 19 March 2015 |
| Neutral Citation | [2015] EWHC 1101 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2779/2013 |
| Date | 19 March 2015 |
[2015] EWHC 1101 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Her Honour Judge Walden-Smith
(Sitting as a Deputy High Court Judge)
CO/2779/2013
The Claimant appeared in person and was not represented
Miss S Bram (instructed by Treasury Solicitors) appeared on behalf of the Defendant
THE DEPUTY JUDGE: This is the substantive hearing for judicial review of the decision of the Secretary of State for the Home Department, permission having been given to judicially review the Secretary of State by HHJ Anthony Thornton QC sitting as a judge of the High Court on 13 March 2014.
Permission had been refused on paper by HHJ Cotter QC sitting as a judge of the High Court on 29 August 2013. The reason for the refusal by Judge Cotter was that the claimant had an alternative remedy, namely an out of country right of appeal.
The permission that was granted by Judge Thornton was limited to a challenge upon the claims being certified as unfounded.
The claim was originally made on 7 March 2013. For a while Mr Owusu was represented by immigration advisers Linga & Co. Thereafter, he was represented by the immigration specialists Turpin & Miller solicitors. Most recently, since 19 February of this year, he has been acting in person.
I mention that previous representation because, although he now acts in person, Mr Owusu has had the opportunity and the benefit of advice from immigration specialists and a great deal of the documentation presented to this court on behalf of the claimant has been presented through those offices.
The decision that is being challenged was made on 4 February 2013 and, amongst other documents, I have before me that detailed decision letter, the statement of grounds for judicial review, the Secretary of State's grounds of resistance and skeleton arguments on behalf of both the claimant and the defendant.
Mr Owusu, acting in person, did not present his skeleton argument until this morning but I had the opportunity to read it before he addressed me orally and I have taken the opportunity over the short adjournment to consider his skeleton argument again.
I also have before me the decisions of Judge Cotter and Judge Thornton. I have had the opportunity to consider in detail the bundle filed on behalf of the claimant and the defendant, as well as various of the authorities that have been presented to me.
In summary, the claimant is a citizen of Ghana. He was born on 22 May 1968. He has told me in oral submissions that he left for Libya when he was about 15 years old. I understand that both his mother and father are deceased.
He says he returned to Ghana in or about 1996 and it was then that the incidents took place, which I will return to, when he says that he was involved with a princess who had already been betrothed to a prince. His relationship with her resulted in a pregnancy and, in due course, birth of a son. He says as a result of that relationship he had to flee Ghana, arriving, he says, in the UK in 1997.
He has never had leave to be in the United Kingdom and, on his case, he was living clandestinely in this country, albeit he says he was known by others, including his church, from 1997.
On 20 April 2012 he made an application for indefinite leave to remain on the basis that he had been resident in the UK for over 14 years. That application was refused on 12 November 2012 on the ground that he had been unable to provide sufficiently convincing evidence to support his contention that he had been in the country since 1997. That decision letter of 12 November 2012 was incorporated in full in the decision letter of 4 February 2013 and, amongst other things, provided as follows:
"You claim to have arrived in the United Kingdom on 2 February 1997, however you have not provided any evidence of the date or method of your entry into the United Kingdom."
The letter of 12 November, incorporated in the decision of 4 February, goes on to deal with various matters. What is said is that it is considered that the claimant had failed to provide evidence of a sufficient standard or quantity that he had resided continuously in the United Kingdom for 14 years. That conclusion was reached on the basis of a number of matters, including the payslips that had been provided. They were dated between 1997 and 2006 and indicated that he had been employed at a number of companies during that period. It has been noted that the payslips were crumpled in an apparent attempt to make them look old.
The evidence concerning self-employment in the construction industry provided a UTR (Unique Tax Reference) number. That linked with confirmation from HMRC on 19 July 2007 but that appeared to be the first reference of the claimant being recorded as self-employed in the construction industry, the first return being issued in 2007/2008. On that basis, it was considered that the claimant had submitted false documentation in support of his claim to have resided in the United Kingdom continuously since 1997.
Further, it was noted that the claimant had provided a medical card showing his registration date as 15 May 1997 but that card itself was in a format that did not come into circulation until 2003, some six years after the date that was put forward. The card also referred to a PCT, primary care trust, whilst primary care trusts did not exist in 1997.
On the basis of that evidence, the conclusion was reached that there was not sufficient evidence to confirm continuous residency in the United Kingdom from 1997 as claimed and that falsified evidence had been submitted in support of his claim.
That decision was appealed by the claimant but the claimant did not proceed with his appeal, he instead proceeded with an asylum claim. He says that it was not his choice to deal with matters in that way but that he had been convinced by an officer that it would be more appropriate for him to make an asylum claim and that that would be his best course. He says that he followed that advice.
Even if that is correct, it did not, of course, prevent him from challenging the basis upon which the decision had been made as to his long residence. Nor did it prevent him from putting forward further evidence in support of his claim that he had been in the country since 1997. The allegations contained in the refusal letter of November 2012 were quite serious allegations of deliberate attempts to falsify evidence.
That first claim brought on the basis of long residence had not been certified but, in due course, in the decision letter of February 2013 the Secretary of State did certify as clearly unfounded both his application for asylum and his human rights application, that application being made on the basis that the claimant says he has Article 8 rights which would be infringed.
The issue before this court on the substantive hearing of the application for judicial review is, first, whether the claim for judicial review should be dismissed on the basis that the claimant has an appropriate remedy by having an out-of-country right of appeal. If the out-of-country right of appeal is available and is an appropriate remedy, judicial review would not be available to Mr Owusu. That, the defendant says, is the end of the matter and the decision of the Secretary of State does not need to be considered further in the context of these proceedings.
However, as Mr Owusu is in person and it is clearly of great importance to him that he understands that all the issues relating to his case are fully considered, I have taken the view that, regardless of my decision on that first point as to whether judicial review is properly available to him, the substantive matters should be considered: that being whether the decision of the Secretary of State on 4 February 2013 to certify both the claim for asylum and the Article 8 claim as being clearly unfounded were rational decisions that the Secretary of State could properly make on the evidence available.
Looking at the authorities, the existence of an alternative remedy is clearly a basis for saying that judicial review is inappropriate. In the case of R (JD Wetherspoon) v Guildford Borough Council [2006] EWHC 815 Admin, Beatson J said:
"It is clear that the existence of an alternative remedy may well be a ground for refusing a substantive application."
He referred to the case of R v Mansfield DC ex parte Ashfield Nominees Limited.
In Lim, an authority that has been referred to both by the claimant and the defendant, ( Secretary of State for the Home Department v R (Lim and another) [2007] EWCA Civ 773, Sedley LJ said as follows:
"It is well established, as the judge reminded himself, that judicial review is a remedy of last resort, so that where a suitable statutory appeal is available the court will exercise its discretion in all but exceptional cases by declining to entertain an application for judicial review."
Then he referred to ex parte Preston and ex parte Calveley. Further, in his judgment he says this:
"This argument depends upon the well established principle, not confined to the immigration field, to which I referred earlier in this judgment, that where a statutory channel of appeal exists, in the absence of special or exceptional factors, the High Court will refuse, in the exercise of its discretion, to entertain an application for judicial review. It is, I would add,...
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