R (S) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice COLLINS |
| Judgment Date | 26 January 2007 |
| Neutral Citation | [2007] EWHC 51 (Admin) |
| Docket Number | Case No: CO/10088/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 January 2007 |
[2007] EWHC 51 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Collins
Case No: CO/10088/2005
Mr Manjit Gill, Q.C. & Mr Basharat Ali (Solicitor Advocate) (instructed by Aman Solicitors Advocates) for the Claimant
Mr Robert Jay, Q.C. & Ms Nicola Greaney (instructed by The Treasury Solicitor) for the Defendant
The claimant, who was born on 10 August 1979, is a citizen of Afghanistan. As a result of persecution by the Taliban, who were then in control of Afghanistan, he fled the country and entered the United Kingdom by means of a false passport on 16 September 1999. He went to solicitors and, following advice from them, attended the Home Office to claim asylum on 17 September. On 14 October he submitted a self-completed questionnaire in accordance with normal practice. Nothing was heard from the Home Office and so on 16 November 2000 his then solicitors wrote expressing their concern at the delay and pointing out that "many other Afghan nationals have received a decision within a shorter period of time". The solicitors further requested a Statement of Evidence form (SEF). In the absence of any reply, they wrote again on 16 February 2001. This resulted in the provision of an SEF which was duly completed and submitted to the Home Office on 11 March 2001.
Nothing happened. On 3 May 2001 the solicitors wrote again asking as a matter of urgency for an indication when a full interview would take place. There was no reply. On 3 August 2001 a further letter was sent asking for an interview and threatening the making of a formal complaint. Again there was no response. New solicitors wrote again on 8 January 2002. At last, an answer was received, albeit an entirely unsatisfactory one. On 25 January 2002, the Home Office, after apologising for not having responded to any of the previous letters, stated:—
"Unfortunately a sharp increase in applications for asylum received in 2001 has meant applications received prior to 2001 have been put on hold for the time being. [S] applied in September 1999 and I regret to say his claim is therefore unable to be considered at present. We are however fully aware that he needs to be interviewed before any decision can be made and we will invite him to attend the Home Office when it is convenient to do so."
In the absence of any further communication, the solicitors wrote again on 16 September 2002, 23 October 2002, 23 January 2003 and 10 March 2003. True to form, the Home Office did not deign to reply to any of these letters, despite being told of the claimant's concern and distress at the delay. However, after 4 months on 7 July 2003 the Home Office wrote saying:—
"I can advise you that your client's Home Office file is currently in a queue awaiting the booking of a substantive asylum interview. Unfortunately, I am not able to advise you at this time when the interview is likely to take place. I can assure you, however, that you will be informed of the date, time and location of the interview, once we are in a position to confirm your interview."
For some reason, a further letter containing the same information was sent and signed by the same caseworker on 25 July 2003. No doubt this, coupled with the indefensible failures even to acknowledge letters, reflected the poor state of affairs in the Immigration and Nationality Directorate (IND).
The claimant was at last interviewed on 12 March 2004 and on 16 March his claim was refused. By then, the Taliban had been removed and circumstances in Afghanistan had changed and so it was not altogether surprising that it was decided that he would not, if returned, be at real risk of persecution. The refusal letter did not in terms consider Articles 3 or 8 of the European Convention on Human Rights, although an Article 3 claim would fail if there was no real risk of persecution. No Article 8 claim based on a breach of any right which had accrued during the 4 1/2 years delay in dealing with the claimant's case seems to have been made. Certainly none was considered in the refusal letter.
The claimant appealed against the decision to remove him as an illegal entrant. The adjudicator, in a determination of 11 June 2004, decided that the claimant did have a well founded fear of persecution when he left Afghanistan, but that, since the Taliban had been ousted, there was, despite his claim that he was still at risk from members of some parties in power because of his support for an organisation known as Harakat-e-Islami, now no risk of persecution. The adjudicator accepted that the claimant had been targeted by the Taliban because he was a Hazara and a Shi'a Muslim. However, he did not find the claimant to have been entirely truthful in that he had produced two documents purporting to be arrest warrants. This was an attempt to gild the lily.
The claimant raised an Article 8 claim in his appeal. It was based on the establishment of a private life and the assertion that he was a highly valued member of the staff where he worked. A letter was produced from his employer to that effect. But no further details were given by the claimant and the adjudicator decided that there would be no breach and in any event return would be proportionate. The claimant did not apparently refer to his association with and plans to marry a British citizen. That association had, on the evidence produced before me, commenced in 2002. The lady in question was and remains married and there were concerns that she would suffer if her family or her husband discovered what was happening. She says that in October 2005 she finally decided that come what may she was going to seek a divorce to end her unhappy marriage and she and the claimant would then marry. He says that she and he agreed that she would allow him to get the right to live in the U.K. on his own merits and then she would divorce her husband and marry him. Since his cousin, who had come to this country at the same time as he, had been granted four years exceptional leave to remain (ELR), he saw no reason why he should not be treated similarly. I can well understand why he held this view.
The claimant's solicitors sought permission to appeal to the Immigration Appeal tribunal. This was refused on 12 November 2004. Prior to that, on 11 October 2004 the claimant through his solicitors applied for discretionary leave to remain in the U.K. based on his integration, his Article 8 right to private life and fear of persecution in Afghanistan. There were enclosed a number of letters showing his good work record and achievements in this country. Yet again, the Home Office failed to respond and in June 2005 the solicitors wrote to the local MP asking for his help. A further letter to the Home Office on 18 August 2005 was again seemingly ignored so that a chasing letter was sent on 11 October 2005. On 3 November 2005, the Home Office refused the application (having delayed for over 12 months). It was accepted that the claimant "may have established a private life" but the view was taken that it was vital to maintain effective immigration control so that removal was proportionate. It might reasonably be thought that to delay for 4 1/2 years before making a decision on an asylum claim and then to delay for a further 12 months before deciding a subsequent application could not be regarded as maintaining effective immigration control.
The letter went on to certify in accordance with s.96(1) of the Nationality, Immigration and Asylum Act 2002 that the application to which the present decision related relied on a matter which could have been raised on the appeal to the adjudicator and so, in the absence of any satisfactory reason for the matter not having been raised in that appeal, there was no right of appeal. The letter also stated, having asserted that there would be no breach of Article 8,:—
"Further to this there is no reason why your client cannot return to Afghanistan in order to apply for the correct entry clearance/work permit, given your client's keenness to work and set up his own business in the UK."
I shall return to this in due course.
In 14 November 2005 the claimant was detained for the purpose of removal. He managed to contact the solicitors who now represent him and, following representations by them, removal was deferred. By letter of 25 November, they submitted a statement from the lady whom the claimant intends to marry together with material confirming the relationship. The letter included the following:—
"Our client's girlfriend is a British citizen of Pakistani extraction and we would ask you to deal with this matter with the utmost of confidence because of the prevalence of the despicable practice known as 'honour killing' within, amongst others, the Pakistani community.
On 2 December 2005 the Home Office refused the application. The letter stated that the claim was "essentially based on the same factors as his previous claim". This was not the case inasmuch as reliance was placed on the relationship with the lady he said he intended to marry. In dealing with that, the letter stated:—
"Full consideration has been given to Mr [S's] asserted relationship with a British citizen, proof of his girlfriend's nationality has not been provided. However, your client has knowingly entered into a relationship in the full knowledge that he did not have the right to remain here. It is considered that the persistence of their relationship within the UK would, from the outset, be precarious. In any case,...
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