R (Tu) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 28 November 2002 |
| Neutral Citation | [2002] EWHC 2678 (QB) |
| Date | 28 November 2002 |
| Court | Queen's Bench Division |
Queen's Bench Division
Cooke J
D Wright for the applicant
Miss L Giovannetti for the respondent
Case referred to in the judgment:
Amjad Mahmood v Secretary of State for the Home DepartmentWLR [2001] 1 WLR 840: [2001] Imm AR 229.
Removal Directions failed asylum seeker had claimed persecution in Indonesia subsequently asserted she was not an Indonesian citizen marriage to a Vietnamese citizen whether Secretary of State entitled to maintain removal directions to Indonesia whether in the events which had happened court should not exercise discretion in applicant's favour whether there had been a breach article 8 of the European Convention. Immigration Act 1971 sch. 2 para. 8; European Convention on Human Rights art. 8.
The applicant, in her unsuccessful application for asylum, had claimed she was a citizen of Indonesia. Subsequently she denied she was a citizen of Indonesia but did not make a claim to be a citizen of any country: she then married a citizen of Vietnam.
The Secretary of State maintained his decision to give removal directions to Indonesia.
His decision was challenged on application for judicial review on the basis of the applicant's denial of Indonesian nationality and that her removal to Indonesia would breach her right to family life, following her marriage and in the light of her husband's circumstances.
Held
1. The Secretary of State was entitled to maintain his removal directions. The applicant had failed to reveal what nationality she claimed other than Indonesian nationality although she had had ample opportunity to do so.
2. The Secretary of State had not been made aware of any special circumstances relating to her husband and thus those were not relevant to an application for judicial review.
3. The Secretary of State's decision was not disproportionate under the provisions of the European Convention.
4. The applicant's conduct did not move the court to exercise discretion in her favour.
1. Cooke J: This is an application for judicial review following the grant of permission to apply for it by the single judge.
2. The claimant, who is aged 37, claims to be an Indonesian national who has come from Indonesia and challenges the decision of the Secretary of State for the Home Department in issuing directions for her removal to Jakarta following a refusal of her asylum appeal by an adjudicator on 17 August of last year.
3. Some six days before the adjudicator's decision in July 2001 she had married a British citizen of Vietnamese origin who is now 68 years old, whom she had met in February 2000, and she then applied immediately following that marriage and prior to the adjudicator's decision for leave to remain as a spouse.
4. In essence there are two grounds put forward as to why it is that she should not be removed. Firstly, it is said that there is no power under paragraph 8 of schedule 2 of the Immigration Act to remove her to Indonesia because at the time of seeking that removal the defendant did not believe and could not show that she was an Indonesian and indeed it was suggested that the adjudicator had made a finding that she was not Indonesian. The latter point was put forward in the skeleton argument but by the time the matter came before me it was accepted that the adjudicator had not in fact made such a finding, and I will come to the details of that in a moment.
5. The second ground put forward was that it would be a breach of article 8 of the European Convention on Human Rights for her to be removed.
6. The chronology of events is as follows. On 23 May 1999 the claimant arrived in the United Kingdom concealed in the back of a lorry. On 26 May 1999 she claimed asylum. On 28 June 1999 she submitted a statement setting out the basis of her claim for asylum, namely that she feared attacks on her in Indonesia by Indonesians because of her Chinese ethnicity. She said she had a well-founded fear of persecution there for that reason and that this was therefore a Convention reason.
7. In February 2000, according to her own evidence, she met Mr Cuu Tu and started a relationship with him. On 11 September 2000 she submitted the statement of evidence form and on 10 January 2001 she was interviewed by the Home Office. It was on 15 January 2001 following that interview that the Home Office set out their reasons for refusing asylum referring to the following matters.
8. Firstly, the Secretary of State did not accept that there was any official policy on the part of the authorities in Indonesia to persecute the Chinese community there, nor did he accept that the claimant would face persecution there if she were to return. He did not consider that being a member of the Chinese community in Indonesia gave rise to a claim for refugee status.
9. Secondly, he assessed that there was no genuine fear of persecution relying essentially on the fact that she had travelled through Europe in the back of a lorry and did not claim asylum at the first safe country that she had reached.
10. Thirdly, he assessed that she was unable to answer a number of simple questions regarding geography and common knowledge of Indonesia and that led him to believe that she was not of Indonesian nationality.
11. Fourthly, he was satisfied that she had not established a well-founded fear of persecution and fifthly, he was satisfied that there were no human rights breaches involved in his decision.
12. When the adjudicator came to consider the...
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