R T & N v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr. Roger ter Haar |
| Judgment Date | 01 August 2014 |
| Neutral Citation | [2014] EWHC 2656 (Admin) |
| Docket Number | Case No: CO/5285/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 August 2014 |
[2014] EWHC 2656 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Roger ter Haar Q.C.
(Sitting as a Deputy High Court Judge)
Case No: CO/5285/2013
Eric Fripp (instructed by Wilson Solicitors LLP) for the Claimants
Julie Anderson (instructed by Treasury Solicitor) for the Defendant
Hearing date: 11 th July 2014
Mr. Roger ter Haar Q.C:
The Claimants apply for judicial review of a decision of the Secretary of State for the Home Department refusing them permission to resettle in the United Kingdom under the UK Border Agency ("UKBA") Mandate Scheme. Permission was refused on paper by Mr. James Goudie Q.C. on the 18 th June 2013 but was granted in respect of one of two grounds on a renewed application by Her Honour Judge Walden-Smith on the 13 th September 2013.
The Claimants are husband and wife. Both are Iraqis. They are both over 65 years old.
Both are refugees recognised as such by the United Nations High Commissioner for Refugees ("UNHCR") under the 1951 Convention who have taken refuge in Syria. Their cases were referred to the UKBA by the UNHCR for consideration of their resettlement to the United Kingdom.
The Mandate Refugee Scheme
The resettlement of Mandate Refugees to the United Kingdom is the subject of a policy document prepared by Her Majesty's Government but published by the UNHCR as part of the UNHCR's Resettlement Handbook.
That document explains the UK's resettlement policy in paragraph 1.1 as follows:
Description of the country's resettlement policy
The Gateway Protection Programme (GPP) and the Mandate Refugee Scheme (MRS) are operated by the United Kingdom Border Agency in partnership with the United Nations High Commissioner for Refugees (UNHCR). The GPP offers a legal route for a specific number of particularly vulnerable refugees to settle in the United Kingdom (UK) each year. The annual quota is currently 750 persons. The MRS allows refugees from around the world with close ties to the UK to be resettled and there is no upper limit.
Paragraph 1.2 and 1.3 explain the process of application for resettlement:
1.2 Ministries and Departments responsible for resettlement policy.
Applications for resettlement under both schemes are processed by UNHCR, who present the individual case submissions to the UK Border Agency (UKBA). The Refugee Resettlement Programmes Unit (RRPU) is part of the UKBA responsible for considering applications for refugee resettlement. Applications cannot be made directly to the RRPU, to British diplomatic posts abroad or through other international organisations. All applications are assessed individually on their merits.
1.3 Process of deciding the annual resettlement quota and its composition.
……
Mandate – RRPU is also responsible for receiving resettlement submissions from UNHCR and considers all applications for refugee resettlement under this scheme on a dossier-basis……
Paragraph 3.1 sets out the Resettlement Eligibility Criteria:
Mandate – Like the GPP those applying for resettlement under the MRS must have been recognised as refugees within the 1951 Refugee Convention and its 1967 Protocol. They must also have close ties with the UK though family or possibly also historical links to the UK (e.g. periods spent here as a student). Close ties are usually taken to mean spouse, minor child or parents/grandparents over the age of 65. In exceptional circumstances other relationships will be considered; parent/grandparent (in the singular) under 65, family members aged 18 or over: son, daughter, sister, brother, uncle, aunt. No other categories of family relationship will meet the close ties requirement. The family members in the UK do not need to have been accepted as refugees but must have settled here or have limited leave in a category leading to settlement and this includes family members here under the Humanitarian Protection or Discretionary Leave provisions. Those who are here in a temporary capacity (e.g. visitors, students, for medical treatment etc) would not normally provide the mandate refugee with a close tie with the UK. The relative in the UK must confirm that they are willing to provide initial accommodation and help with the integration of the resettled refugee(s).
Paragraph 3.2 sets out the Admissibility Criteria which apply to both the GPP and the MRS. I have highlighted the phrase which is at the heart of the present challenge:
The applicant (and his/her dependants) must co-operate with UK officials and any other body involved in the GPP. The UK also looks at whether the GPP is able to meet the resettlement needs of the applicant and their dependants; and whether resettlement of the applicant and their dependants in the UK would not be conducive to the public good. The UK process also seeks to establish whether resettlement to the UK may be contrary to the best interests of the applicants, or their dependants.
In her submissions on behalf of the Secretary of State, Ms. Anderson emphasises that the Mandate Refugee Scheme is a purely voluntary area of exercise of governmental discretion: the discretion whether or not to grant permission to resettle in the United Kingdom is not a discretion imposed by domestic statute or by international obligations. I agree with this and agree that this is of importance in considering whether the Claimants in this case can establish an enforceable breach on the part of the Secretary of State of a public law obligation.
The Facts
I am unsure exactly when the Claimants made their application for resettlement, but it led to a short letter from the UKBA to the Claimants' son dated the 18 th May 2012. The letter was short:
I am writing in reply to the application regarding resettlement of [the Claimants] to the United Kingdom.
The application has been fully considered but it has been concluded that [the Claimants] should not be accepted for resettlement in the United Kingdom for the reason given below.
It is considered that [T]'s presence in the United Kingdom would not be conducive to the public good.
The Claimants' son pressed for further explanation of the decision. This elicited this response on the 19 th July 2012:
I am unable to provide any further information other than to confirm that, as a result of the information your father provided in his application regarding his previous employment and political involvement in Iraq, it has been determined that his resettlement to the UK would not be conducive to the public good.
The Claimants' son then instructed solicitors (Wilsons Solicitors LLP) who wrote on the 2 nd August 2012:
[The Claimant's son] instructs that his father was a low level member of the Ba'ath party in Iraq, like millions of ordinary Iraqis during the years Saddam Hussein rules Iraq. According to [the Claimant's son] his father's political involvement was purely administrative. Its only aim was to allow him to obtain employment and function in Iraqi society. In any event, if there had been any question about [T]'s character, the British Embassy in Damascus would not have issued him with entry clearance to visit the UK.
The UKBA responded with a long letter dated the 11 th September 2012. It included a recital of T's history in Iraq. This was a record of what T had told UNHCR in support of his application and he accepted its accuracy, except in so far as he told the UNHCR that he had never heard about human rights violations related to political opponents. The detailed history is common ground and need not be set out in great detail: the central points are that T had from 1958 to 2001 been a sympathiser then a member of the Ba'ath Party reaching a rank of "Active Member" (the precise translation of this expression being in dispute as set out below), and that whilst Iraq was dominated by that party T had attained senior positions in the Iraqi oil industry, latterly in the Oil Ministry of Iraq.
The letter then explains the reasons for refusal:
The subject has detailed a lengthy senior career within the Iraqi Oil industry. A number of appointments were ordered by Presidential decrees from Saddam Hussein.
In particular in 1991 the subject was appointed [to a very senior post in the Oil Industry]. This was a significant appointment. Given the widespread corruption and manipulation of Iraqi Oil in breach of UN Sanctions, (evidence of which is contained in the attached annex A), the subject is considered to be closely associated with this.
Further, the subject has detailed a lengthy association and membership of the Iraqi Ba'ath Party which dates back to 1958. He described himself as an active member of the Ba'ath Party from 1972. He further detailed his involvement in a cultural committee which was described "This committee had the purpose to circulate the official newspapers and the issues raised in forums attended by all Division Members. (UKBA emphasis) They talked about the general situation, politic, economic and social situation."
The Ba'ath Party had a structured ranking system which started with people who were classed as non-members, but associated to the Ba'ath Party. The lowest rank being Sadiq (friend) and the highest outside of government positions being Udw Fara (Branch Leader). People could be sympathisers with the party and would start at this level before progressing into the formal ranking structure. Being a full active...
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