R (v) v Asylum & Immigration Tribunal
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 24 July 2009 |
| Neutral Citation | [2009] EWHC 1902 (Admin) |
| Docket Number | Case No: CO/3479/09 |
| Date | 24 July 2009 |
| Court | Queen's Bench Division (Administrative Court) |
[2009] EWHC 1902 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Hickinbottom
Case No: CO/3479/09
Geoffrey Robertson QC and S Chelvan (instructed by Solicitors Unit, Immigration Advisory Service) for the Claimant
The Defendant did not appear.
Steven Kovats (instructed by the Treasury Solicitor) for the Interested Party
Hearing dates: 8 July 2009
Mr Justice Hickinbottom:
Introduction
The claimant, V, was born on 18 October 1987. He is a Colombian national who entered the United Kingdom on 1 August 1989, as a 22 month old baby, with his mother, and has resided in this country ever since.
He was granted exceptional leave to remain until 25 April 1999, in line with his mother who had applied for refugee status. A later application for indefinite leave in line with his father was unsuccessful. On 10 November 2005, the claimant was refused registration as a British citizen on the grounds of his character and conduct. On 25 November 2005, he requested indefinite leave to remain on the basis of 14 years residence in the United Kingdom. In the meantime, his father and three siblings (in 2002) and mother (2006) were all granted indefinite leave to remain, and his father has been granted British citizenship.
The claimant's application for indefinite leave was refused by the Secretary of State for the Home Department (“the Secretary of State”, the Interested Party) in a decision dated 13 June 2008, which rejected his request and continued:
“Furthermore, in view of your history of criminal activity and your propensity to re-offend if you remain in the United Kingdom, the Secretary of State deems it to be conducive to the public good to make a deportation order against you…”
The claimant appealed that decision to the defendant, the Asylum & Immigration Tribunal (“the AIT”). As a result, the Secretary of State gave further consideration to the matter and issued a supplemental letter dated 5 November 2008 which, although accepting that the claimant had indeed been in the United Kingdom for 14 years, upheld the earlier decision. In that supplemental decision letter, the Secretary of State relied on evidence that the claimant was a member of a criminal gang and, in particular, evidence of the (i) involvement in the murder of a 15 year-old youth, F, in 2006, (ii) his brandishing of a sawn-off shotgun earlier in the evening of F's murder, (iii) three spent convictions, and (iv) criminal intelligence purportedly showing him as being associated with criminal gangs.
The appeal first came before the AIT on 9 December 2008, and directions were given that submissions would be heard in respect of a number of preliminary issues, notably:
i) the appropriate standard of proof to be applied in respect of the factual matters upon which the Secretary of State's decision to deport was based;
ii) whether the AIT has jurisdiction to determine whether an appeal is an abuse of process; and
iii) if so, whether, in the particular circumstances of this appeal, the Secretary of State was acting abusively in seeking to rely upon the evidence he had identified, as set out above.
Those preliminary issues were considered by a panel of the AIT (Senior Immigration Judge Pinkerton and Designated Immigration Judge G Davis, “the AIT panel”) on 22 December 2008. A reserved decision was promulgated on 13 January 2009 in which (at paragraph 27) the panel concluded:
“Having considered the submissions, both oral and written and having considered the authorities to which we were referred we find the following:
(i) The AIT has no express power to determine whether conduct of an appeal by either party to it is an abuse of process. Although the concept of abuse of process has application in the field of immigration and asylum appeals, that application is restricted— EG (Abuse of process—legitimate expectation) Serbia and Montenegro [2005] UK AIT 74. It is not necessary or appropriate for us to attempt to define how the application is restricted since in this appeal we find that no substantial risk to the fairness of the proceedings has been shown to exist.
(ii) In general the AIT is required to hear and determine on its merits a valid appeal although in an exceptional case a party can seek judicial review of an interlocutory decision of the Tribunal— R (AM (Cameroon)) v AIT [2008] EWCA Civ 100.
(iii) We are not engaged in a quasi-criminal trial since deportation proceedings are not criminal proceedings. It is our task to hear and consider all relevant evidence placed before us. It will be open to either party to make submissions on admissibility and, if admitted, weight.
(iv) If the Tribunal is said to have erred in law the appropriate remedy is to seek re-consideration after the determination of the appeal.”
The AIT panel consequently decided that the appeal should proceed to a full hearing on its merits.
It is that decision which the claimant now seeks to judicially review. On 27 April 2009, Philip Mott QC sitting as an additional judge of this court directed that there be a rolled-up hearing of the application for permission with (if permission be granted) the substantive application immediately to follow. He also directed that the claimant's substantive appeal before the AIT (then listed for 5 May 2009 for four days) be stayed pending the resolution of these judicial review proceedings. This is the reserved judgment from that rolled-up hearing.
The Claimant's Case
With regard to the jurisdiction of this court, it was common ground between Mr Geoffrey Robertson QC for the claimant and Mr Steven Kovats of Counsel for the Secretary of State that the Administrative Court has jurisdiction to judicially review any interlocutory decision of the AIT. That must be correct. The AIT is a public body, entirely the creature of statute (created by section 81(1) of the Nationality, Immigration and Asylum Act 2002, “the 2002 Act”), and is as much subject to the supervisory jurisdiction of the High Court as any statutory tribunal or other public body. The issues before me are whether, in its determination of 13 January 2009, the AIT erred in law: if so, whether that supervisory jurisdiction should be exercised to grant relief: and, if so, what form that relief should take.
Mr Robertson submitted that the Secretary of State is being abusive of the AIT procedure in relying upon the evidence he does rely upon, or any part of it. The claimant having been acquitted of the murder of F, the issue as to whether he did kill him is res judicata and gives rise to a res judicata estoppel: the verdict of the jury cannot be questioned in any court for any purpose. Therefore, to allow evidence to be adduced before the AIT that he did murder F is impermissible. Particularly unconscionable, Mr Robertson says, is the reliance of the Secretary of State on a victim impact statement from the deceased's mother, which can have no probative value and can only be prejudicial. The evidence that the claimant had a sawn-off shot gun earlier in the evening of the murder (which was never the subject of a criminal charge) came from an anonymous witness at the murder trial, and the claimant is unable effectively to challenge that evidence because he does not know who gave that evidence. Consequently, the Secretary of State should not be allowed to rely upon that evidence either. Similarly, the criminal intelligence evidence found in a statement from a police officer together with an 800-page CRIS report of data collected is mainly from unnamed second-hand hearsay sources. Again, these allegations cannot be effectively challenged because of the nature of the evidence and its anonymous sources. Finally, the previous convictions relied upon are spent, and relate to minor crimes committed when V was a youth. None is in relation to an offence of violence, and all were the result of guilty pleas before the Youth Court. To allow reliance upon these in a deportation appeal would be, Mr Robertson contends, contrary to the spirit of the Rehabilitation of Offenders Act.
That is the sum of the evidence that the Secretary of State relies upon to defend his decision to deport the claimant, in respect of which the burden of proof falls upon him: and, Mr Robertson submitted that, in seeking to rely upon any of this evidence, the Secretary of State is abusing the procedures of the AIT. He submitted that, consequently, the AIT erred in allowing the appeal to proceed to a hearing on its merits. The panel ought to have ruled that reliance upon any of this evidence is an abuse of process: and then used its inherent powers to prevent such an abuse, effectively (as I understand the submission) to strike out the Secretary of State's defence of the appeal which would have had the inevitable consequence of the claimant's appeal being allowed. An integral part of this error on the tribunal panel's part, it was submitted, was their failure to determine the relevant standard of proof which the Secretary of State has to satisfy in relation to the facts which form the basis of his decision to that the claimant be deported.
For those reasons, Mr Robertson submitted that the AIT panel erred in law in their determination. With regard to relief, although there are other potential routes of challenge open to the claimant (at least in the future), Mr Robertson contended that this is an exceptional case in which the court's...
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