R (WJ) (China) v Secretary of State for the Home department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Sullivan,Lord Justice Pitchford |
| Judgment Date | 01 February 2011 |
| Neutral Citation | [2011] EWCA Civ 183 |
| Docket Number | Case No:—C4 / 2010 / 0884 + Y |
| Court | Court of Appeal (Civil Division) |
| Date | 01 February 2011 |
[2011] EWCA Civ 183
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Before: Lord Justice Sedley
Lord Justice Sullivan
and
Lord Justice Pitchford
Case No:—C4 / 2010 / 0884 + Y
Abid Mahmood and Ms Nazman Ismail (instructed by Messrs Turpin and Miller) appeared on behalf of the Appellant.
David Blundell (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
Lord Justice Sedley:
Permission to appeal was granted in this case by Beatson J following his dismissal of a claim for judicial review of the Secretary of State's refusal to treat new representations made by the appellant as a fresh claim for asylum. He granted it on a single ground arising out of the decision in BA (Nigeria) v SSHD [2009] UKSC 7, of which I shall say more in a moment.
The applicant also sought permission to apply for judicial review against the Secretary of State in relation to her decision under Article 8 of the Convention that removal was justified. This claim Beatson J held to be unarguable. The appellant as applicant now seeks permission to appeal against the consequent refusal by the judge of permission to apply for judicial review.
Because the background to the case and the issues are so fully and carefully set out in the judgment of Beatson J [2010] EWHC 776 (Admin) I can be relatively brief in setting them out.
The claimant, as I will call the appellant/applicant, is a Chinese national. There has been doubt about her date of birth but it seems, on a preponderance of evidence, that it was in September 1979. In July 2009 she was arrested in this country for shoplifting and as a suspected immigration offender. At that stage she gave a false name and a date of birth in 1972. She was detained, and served with papers as an illegal entrant, but she was released.
By the use of fingerprint records it was then established that she had given false identity details on her arrest. She had first, it turned out, claimed asylum in this country in September 2001. That application had been refused in February 2002 on the ground, among others, that she had previously claimed asylum in France with the result that she was returned there in February 2002.
She reappeared in the United Kingdom in July 2008 claiming to have re-entered concealed in a container. When arrested the claimant again claimed asylum. This was in July 2009, a date to which I shall need to return. Her claim was based at that stage on her assertion that as a Catholic she had a well-founded fear of persecution in China. She claimed to have been arrested along with other members of her church in the period between May 2007 and February 2008 and to have been imprisoned for two weeks before she escaped. She was not, however, able to explain very clearly how she had escaped, nor was she able to demonstrate much knowledge of the Catholic faith.
In August 2009 this asylum application was refused, principally on grounds of lack of credibility. On 6 November 2009 removal directions were issued.
There then followed something of a scramble to prevent removal involving a very late application for leave to remain, this time on the basis of a relationship into which she had entered with a Mr Songan Lei. She sought permission to apply for judicial review and succeeded in securing an order preventing her removal from the United Kingdom. Then in November 2009 solicitors acting for the claimant wrote to the Secretary of State asking that her application made in November 2009 be considered as a fresh application either for asylum or for leave to remain on human rights grounds. It was found by the Home Office not to amount to a fresh claim and in late November 2009 was refused. Further removal directions were issued in December 2009 requiring that the claimant depart on 5 January 2010, but on that date the judicial review claim which has now reached this court was initiated, supported by a second injunction preventing removal.
On 15 January 2010 the claimant applied for a certificate of approval of her marriage in the United Kingdom to Mr Songan Lei. That certificate has not been granted. Instead, a rolled up hearing was ordered of the application for permission and the substantive hearing were permission to be granted. It was in March 2010 that the hearing took place before Beatson J.
The judge dealt with the Article 8 issue on which he ultimately refused permission to apply at paragraphs 39 to 49 of his judgment. It is unnecessary for me to recite it in detail, but at paragraphs 39 to 41 one finds his account of the material facts, many of which I have now summarised. In particular, however, he cites Mr Songan Lei's statement that, having now secured United Kingdom citizenship and having a business which was flourishing in this country, he would not return to China with the claimant were she to be removed; indeed, having forfeited his Chinese citizenship by obtaining UK citizenship, he might well not be allowed to do so. Beatson J concluded that:
"It is not unreasonable to expect Mr Lei to relocate with the claimant to China."
Pausing here, although the point has not been argued, it may that this is not the right question, as we sought to make clear in this court in VW (Uganda) v SSHD [2009] EWCA Civ 5; the question is what is likely to happen if the claimant is removed or deported, not what the tribunal or court thinks ought to happen. Here it may be said that on the evidence it is a near certainty that Mr Lei will not follow the claimant to China if she is removed, not only because he has British citizenship and a thriving business here, but also because there are good reasons to doubt the depth and solidity of her attachment to him.
Without deciding a point which has not been formally argued, I am nevertheless content to approach the Article 8 issue by asking, more favourably to the claimant than the question asked by the judge, whether it was proportionate to separate the two of them for good by removing the claimant leaving Mr Lei here. To this question too it seems to me there was only one realistic answer. Given the claimant's prolonged, persistent and dubious history of deception in evading the United Kingdom's immigration controls, it is practically inconceivable that it could be found not to be proportionate to remove her. Everything said by the judge in paragraph 47 to 48 in his assessment applies equally to the scenario that I have described. The claimant cannot expect, by presenting the Home Office with a fait accompli at the end of this deplorable history, to escape its ordinary consequence. The judge was fully entitled at paragraph 14 to describe the claim as bearing signs of abuse.
Mr Mahmood, for the claimant, submits that the judge erred in adopting the Strasbourg case law, especially Abdulaziz in preference to House of Lords authority in Chikwamba, Beoku-Betts and EB (Kosovo). I think, for my part, that the Supreme Court would be surprised to learn that its...
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