R (Pharis) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 25 May 2004 |
| Neutral Citation | [2004] EWCA Civ 654 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 2004 |
| Docket Number | Case No: C4/2003/2087 PTA |
[2004] EWCA Civ 654
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Maurice Kay J
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Brooke
Vice-President of The Court of Appeal (Civil Division)
Lord Justice Tuckey and
Lord Justice Laws
Case No: C4/2003/2087 PTA
The Appellant did not appear and was not represented
Lisa Giovannetti (instructed by The Treasury Solicitor) for the Respondent
This is the judgment of the court.
This is an application by Ben Pharis for permission to appeal against an order by Maurice Kay J sitting in the Administrative Court on 19 th June 2003 when he dismissed his application for judicial review of a decision by the Secretary of State to remove him to Nigeria. The grounds for his application were that this decision was wrong in law because he was not from Nigeria. He had told the Secretary of State that he was from Sierra Leone. He did not have a family in Nigeria, and he had not lived in Nigeria because he had lived in Sierra Leone all his life.
Maurice Kay J was shown an emergency travel certificate which certified a travel facility valid only for a journey from London to Nigeria. It described the claimant as having been born in Port Harcourt in Nigeria on 10 th October 1972 (his agreed date of birth) and certified that the passport officer in the Nigerian High Commission in London had no reason to doubt the claimant who had told him that he was Nigerian. The claimant for his part asserted that this officer had misunderstood what he said. He placed before the judge what purported to be a certified true copy of a Sierra Leone birth certificate, showing him to have been born in that country of Nigerian parents. The claimant's story was that he had left Sierra Leone after his parents had died and had gone to live with his brother in Gambia for a number of years where he claimed to have been persecuted. Nobody was seeking to return him to Gambia.
Paragraph 4(1) of the Immigration (Removal Directions) Regulations 2000 sets out the requirements that may be imposed by removal directions. Paragraph 4(2) provides that:
"Paragraph (1) only applies if the directions specify that the relevant person is to be removed to a country … being –
(i) a country of which he is a national or citizen; or
(ii) a country … to which there is reason to believe that he will be admitted."
The judge dismissed the claimant's application on the grounds that the removal direction in issue satisfied the second of these criteria even if it did not satisfy the first.
The claimant was present in court on 19 th June 2003 and his time for seeking permission to appeal expired on 26 th June (see CPR 52.15(2)) . On 4 th July the Civil Appeals Office received a notice of appeal, but they returned it to him on the grounds that it had been filed out of time and he had not applied for an extension of time, nor stated the evidence on which he sought to rely in support of such an application.
He was later to contend that he had faxed a further copy of the Notice of Appeal to the Civil Appeals Office on 24 th July (four weeks out of time) . On 8 th September the Civil Appeals Office, having heard nothing since they returned the original notice, inquired of him whether he wished to proceed with his application. By this time he had been moved to a different detention centre. On 22 nd September the office received and sealed a notice of appeal in the proper form.
On 6 th October the claimant served his notice of appeal on the Treasury Solicitor, who notified the Judicial Review Unit of the United Kingdom Immigration Service that this notice had been issued.
The application was first listed for hearing before Buxton LJ on 13 th January 2004. Shortly before that hearing it had become apparent that the claimant had in fact been deported to Nigeria on 10 th November. On 19 th December Laws LJ directed that the Home Office should explain what had happened.
The Home Office's first attempt to explain what had happened was signed by a caseworker who accepted that the Treasury Solicitor had requested the Home Office to defer removal pending the hearing of the application, but said that it appeared that this notification had not been attached to the Home Office file, and that three sections of the file were missing. Buxton LJ directed that a clearer explanation should be given. This elicited a statement by an assistant director of the relevant unit at Leeds who asserted that there was no evidence of the Treasury Solicitor's request on the Port file, or in the other paperwork held by her unit, or in the available Home Office files. She repeated that...
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