R Owusu v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Judge Thornton |
| Judgment Date | 13 March 2014 |
| Neutral Citation | [2014] EWHC 3535 (Admin) |
| Date | 13 March 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2779/2013 |
[2014] EWHC 3535 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge Anthony Thornton QC
(Sitting as a Judge of the High Court)
CO/2779/2013
The Claimant appeared in person and was not represented
Miss Sarah Abram (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
This is the case of Mr Moses Owusu v Secretary of State for the Home Department CO/2779/2013. This is a renewed application for permission to apply for judicial review and I am going to grant permission. Because I am granting permission I do not propose to give extended reasons, but it is fair to both parties that I should very briefly indicate what it is I am giving permission for and why I am doing so.
The claim for judicial review arises in these circumstances: Mr Owusu is from Ghana and he says that he has been resident in the United Kingdom, for most of the time he would accept unlawfully, for many years. At the time of his first application he was applying for leave to remain under the then long residence exception based on 16 years of residence in this country.
The case that he presented then has gone through a very tortuous and somewhat tangled procedural route before it has ended up today as a renewed application for permission. The strands of that tangled web may be looked at in summary in this way: Mr Owusu's original application was based exclusively on his long residence; the application was rejected and the decision letter rejecting that application set out the reasons for rejection, including a detailed analysis of documents that have been submitted in support of the application, which were relied on as showing that Mr Owusu had been resident for many years in this country. The documents were associated with what he was putting forward as the employment that he had in the construction industry, and included national insurance and revenue documentation and also a copy of a medical card.
I stress that I am forming no view as to the authenticity of these documents when I say that the decision was in part based on the fact that some of these documents were false, in that they did not relate to Mr Owusu, or the contents of the document were in part untrue. In consequence, the Secretary of State was prepared to accept that Mr Owusu had been resident for about six years in the UK, but was clear in rejecting the evidence that he had been here for any longer period.
The decision of the Secretary of State was the subject of an appeal to the First-tier Tribunal and Mr Owusu lodged grounds of appeal, which appeared to the Secretary of State not to amount to an appeal from rejection of the long residence application, but to a completely different application for asylum or for protection. The Secretary of State, at the door of the hearing room where the appeal was to be heard, informed the claimant and his representative that the decision rejecting his long residence claim was being withdrawn, and that Mr Owusu would be treated as having made an asylum claim, which was to be found in the grounds document that he had served in connection with his proposed appeal. This was of course an unusual way for an individual to make an asylum claim, but it was clearly a process that was permitted and made a great deal of sense in the context of the situation that was presented by the claimant at the time when he was about to argue his appeal.
Soon after the appeal hearing, which was taken out of the list, the claimant was sent details of the asylum interview that has to be carried out when an asylum claim is made, and he attended that interview and the detailed conventional asylum interview was carried out. In the course of that interview the Secretary of State subsequently took the view that Mr Owusu had given certain answers that dealt not with his asylum claim, but provided evidence to support the conclusion that he had not been resident in the United Kingdom for the length of time that he had claimed in his long residence application. Again I express no views as to whether that was a reasonable conclusion of the Secretary of State, and whether the answers in question reasonably showed that Mr Owusu's previous long residence claim was not based on a correct factual basis.
The Secretary of State then reached a decision adverse to Mr Owusu, which rejected his asylum claim. This is the decision of 4 February 2013. The first limb, as I have just said, rejected his asylum claim. The second limb of the decision then moved on to a consideration of Mr Owusu's position in relation to Article 8. The decision, as I read it, is not entirely clear as to whether the decision-maker is reaching a decision on the long residence claim (this part of the decision), is reaching an old-style Article 8 decision, that is to say whether removal would interfere with his private and family life, is reaching a decision on a claim for leave to remain under the appendix FM rule structured basis for considering leave to remain applications that has been in force since July 2012, or is making a general sweeping up decision as to the removability of Mr Owusu in a way that used to be undertaken under paragraph 293 before it was repealed, and which is a perfectly fair precursor to any subsequent decision to remove him.
These may not be different ways of dealing with Mr Owusu's position, but they are certainly regarded as potentially different ways of making the claim. The importance to Mr Owusu of both being clear as to what was being decided, and as to whether he had been given a fair opportunity to address any, or all, of those ways of looking at his claim, had been given to him. He thought that the position was that following the asylum interview he had for consideration by the Secretary of State of his asylum claim and his original long residence claim, given that the decision adverse to him had been withdrawn and the appeal had itself also been withdrawn, that the original long residence application was still live.
The Secretary of State appears from the documents to have concluded at the time when the second decision was taken, and previous to that, that Mr Owusu had withdrawn his long residence claim in its entirety. It was for that reason, it was suggested, that Mr Owusu's original rejection decision had itself been withdrawn by the Secretary of State. But there is nothing in the documents, other than the terms of the notice of appeal in the original First-tier Tribunal appeal (the grounds of appeal settled by Mr Owusu), which would point to his formally withdrawing his long residence claim.
In any case it is not clear to me, from the decision of the Secretary of State that I have now referred to, that the Secretary of State had accepted and was acting on the basis that the long residence claim had been withdrawn, since if it had there would be no need to consider an Article 8 claim either in its old-style form, or in the form that Article 8 claims are now considered in, namely under Appendix FM. Again there would, strictly speaking, be no need to consider the claim in its sweeping up form that the letter appeared also to have considered it under.
So that when the Secretary of State appears to have decided the long residence claim in all those potential varieties, the Secretary of State was taking a number of decisions of some significance to Mr Owusu, namely that he had not established long residence of 16 years plus, and his attempt to do so in the earlier application was the subject of dishonest documents which did not support his having been resident for 16 years. It also considered and decided that Mr Owusu had no case for showing that he was subject to the exceptional circumstances proviso to the Appendix FM way of analysing his claim, and it also decided that he had no grounds for showing that he had lost all contact with Ghana and it was therefore, on those grounds, wrong for him to be returned to Ghana. I am paraphrasing that last ground. But the decision-maker concluded that because there was some evidence that Mr Owusu had a child in Ghana he cannot be said to have lost all contact with Ghana, although it is not clear to me that there was any evidence as to the...
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