R (WJ) (China) v Secretary of State for the Home department

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Beatson
Judgment Date19 April 2010
Neutral Citation[2010] EWHC 776 (Admin)
Docket NumberCase No: CO/65/2010

[2010] EWHC 776 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Before: The Honourable Mr Justice Beatson

Case No: CO/65/2010

Between
R (WJ) (china)
Claimant
and
Secretary of State for the Home Department
Defendant

MR ABID MAHMOOD (instructed by Harvey Son & Filby) for the Claimant

MR CHARLES BANNER (on 17/3/10) and MR DAVID BLUNDELL (on 23/3/10) (instructed by The Treasury Solicitor) for the Defendant

Hearing dates: 17/3/10 and 23/3/10 at Birmingham Civil Justice Centre

Mr Justice Beatson

Mr Justice Beatson:

A. Introduction

1

The claimant, a citizen of China, seeks to challenge the decisions of the Secretary of State on 25 November 2009 to refuse to regard new representations as a fresh claim and on 17 December 2009 to issue directions for her removal from the United Kingdom on 5 January 2010. On 17 March I heard her application for permission to apply for judicial review on a “rolled up” basis pursuant to the order of HHJ Kirkham on 21 January. At the conclusion of the hearing I granted permission and allowed the application only on the basis of a ground (the “ BA (Nigeria)” ground) first advanced on behalf of the claimant by Mr Mahmood in his oral submissions. The sole ground in the claimant's N461 form is that her removal would be a breach of Article 8 of the European Convention of Human Rights. In his skeleton argument Mr Mahmood also submitted that the defendant applied the wrong test in determining whether the claim was a “fresh claim” within paragraph 353 of the Immigration Rules. I refused permission on both those grounds.

2

On the day after the hearing I formed the view that my conclusion on the BA (Nigeria) ground was manifestly wrong. As the Order had not been drawn up, on Friday 19 March I invited written submissions from Mr Mahmoud and from Mr Banner, who had appeared on behalf of the Secretary of State, as to whether it was open to me to revisit the decision and, if it was, whether to do so. I received submissions on behalf of the claimant from Mr Mahmood, and, on behalf of the Secretary of State, from Mr Blundell, who had appeared on behalf of the Secretary of State in a similar case heard by the Divisional Court on 16 March. After a further hearing on Tuesday 23 March, I set aside my earlier decision. I confirmed my decision to grant permission to apply for judicial review on the BA (Nigeria) ground, but dismissed the claim, and granted the claimant permission to appeal. Mr Mahmoud also sought permission to appeal on the Article 8 point, but since I concluded that the point was not arguable and did not give permission to move for judicial review, he will have to apply to the Court of Appeal. I now give the reasons for my decision on the grounds advanced by Mr Mahmood at both hearings, and for my decision to set aside my previous decision.

3

On 31 March the Divisional Court dismissed the claimant's case in R (SM and ZA) v Secretary of State for the Home Department [2010] EWHC 718 (Admin). If, as Mr Blundell informed me, the issues in that case are similar to those in this case and if there is to be an appeal from that decision to the Court of Appeal, there would be some advantage in any appeal from my decision being heard together with it or sequentially.

B. The factual and procedural background before the hearing on 16 March

4

The claimant first arrived in the United Kingdom in 2001. She claimed asylum in September 2001 but on 4 February 2002 her application was refused on third country grounds because she had previously claimed asylum in France. On 12 February 2002 she was removed to France. She subsequently re-entered the United Kingdom illegally. She claimed to have done so in July 2008 concealed in a container. She did not come to the notice of the authorities until 29 July 2009 when she was arrested for shop lifting. She was detained, served with IS151A papers as an illegal entrant, and then released. She subsequently claimed asylum again. She did not, at that time, claim that removal would breach her Article 8 rights. In her asylum interview she claimed she had broken up with her boyfriend a couple of weeks before the interview. When detained she gave a false name, but fingerprint evidence revealed her true identity and her previous asylum claim. Her second asylum claim was refused on 28 August 2009. She did not appeal against that decision.

5

The Secretary of State's decision letter did not accept the claimant's account and (paragraph 24) concluded that she lacked credibility. The letter refers (paragraphs 5, 11 and 21) to her assertions that she and all her family are Catholic and that she attended prayer meetings twice daily, but that she only had very limited knowledge of the Catholic religion. It also stated (paragraph 22) that her account and her stated fear of persecution by government officials is inconsistent with the objective evidence about the treatment of Catholics in China.

6

The claimant has been detained since 18 August 2009, when she reported. It was not until 6 November 2009 that the Secretary of State through the UK Border Agency set removal directions for 12 November. On 11 November, the day before she was to be removed, two months after she was detained, and five days after the removal directions were set, her solicitors made an application under the Family FLO Policy based on a relationship she claimed she had been in for approximately a year with Songan Lei, a naturalised UK citizen originally from China. The application stated they had been living together since the beginning of 2009. The solicitors also applied on her behalf for permission to apply for judicial review and for urgent interim relief to restrain her removal. The application for interim relief (case CO/13502/2009) came before HHJ McKenna that day. He granted the interim relief sought. As a result the removal directions were cancelled.

7

On 20 November further submissions were made on behalf of the claimant. Her solicitors asked for them to be considered as a fresh application for asylum and on human rights grounds which were based in part on her relationship with Mr Lei. The application under the Family FLO Policy and the fresh claim for asylum were both refused on 25 November. The defendant treated the application for leave to remain as Mr Lei's unmarried partner as a “fresh representations” application. This was because, since the claimant had no status in the country when she made the application, she was not eligible under the Family FLO Policy.

8

The material parts of the letter dated 25 November are:

“20. You claimed asylum on the 29/7/2009 and your application for asylum was refused on the 27/8/2009. You did not appeal against this decision but have now applied for Judicial Review.

24. … It is noted that in the asylum interview you claimed that you were previously in a relationship with Su'an Lai and that you had broken up with your boyfriend a couple of weeks ago when he had moved out after a row. You now claim that you are presently in a relationship with Mr Songan Lei a British Citizen. Due to the inconsistencies in your account regarding the name of your partner and the status of your relationship it is not considered that you have established a family life in the UK.

Furthermore it is noted that whilst you have provided the passport of your partner Mr Songan Lei you have provided no other evidence of this relationship. In fact in making this application you stated that ‘the lack of documentation was for three reasons (i) my instructing solicitors have only recently been instructed in this matter, (ii) the urgency of the removal directions aspect was given priority rather than seeking to deal with the details of the document relating to the couple and (iii) the couple have made a FLR (O) application in which they seek for the Claimant to remain in the UK which tends to show some of the details in any event. This application is dated 11 th November 2009’. However, since you were refused asylum on the 27/8/2009 it is considered that you have had adequate opportunity to acquire any information pertinent to your claim. The only evidence that you have submitted for your FLR (O) application consists of copies of your alleged partner's bank account. This does not demonstrate that you are in a relationship.

29. You have also raised the case of Chikwamba v SSHD [2008] and stated that the Home Office has not shown that it would be proportionate for the Claimant to have to apply for leave to enter the UK from China. As stated previously the issue of proportionality was not considered above due to the fact that it was not considered that you have established a family life in the UK with Mr Songan Lei. However despite the lack of family life Chikwamba has been considered. Your case is significantly different from Chikwamba.

30. It is noted that Mr Songan Lei although a British Citizen was born in China and no reasons have been provided to suggest that he is unable to return to China with yourself. This is fundamentally distinguished from Chikwamba where the spouse was a refugee and was unable to return to Zimbabwe.

31. Your asylum claim has been reconsidered on all the evidence available, including the further submissions, but it has been decided that the decision of 27/8/2009 should not be reversed. It has been decided that the fresh submissions regarding your relationship are not significantly different from your previous application and furthermore that your relationship was considered in the Reasons for Refusal Letter.

33. As it has been decided not to reverse the decision on the earlier claim...

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