R (ZA & SM) v Secretary of State for the Home Department and Others
| Jurisdiction | England & Wales |
| Judgment Date | 31 March 2010 |
| Neutral Citation | [2010] EWHC 718 (Admin) |
| Date | 31 March 2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: (1)CO/5119/2009 and (2)CO/12009/2009 |
[2010] EWHC 718 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: President of The Queen's Bench Division
The Hon Mr Justice Foskett
Case No: (1)CO/5119/2009 and (2)CO/12009/2009
(1) Mr M.S. Gill QC and Mr D Bazini (instructed by Trott & Gentry) for the Claimant
(2) Miss N Nnamani (instructed by Nathaniel & Co for the Claimant
(1) and (2) Mr D Blundell (instructed by the Treasury Solicitor) for the Respondents
Hearing date: 16 th March 2010
This is the judgment of the Court
Introduction:
The first question, which is common to each of these claims for judicial review, is whether the Secretary of State is entitled to refrain from making an appealable immigration decision in response to an asylum claim or a human rights claim which he judges rationally to be merely repetitious of an earlier claim whose rejection has been unsuccessfully challenged in a concluded appeal. This requires an analysis of Part 5 of the Nationality Immigration and Asylum Act 2002, consideration of the recent Supreme Court decision of the House of Lords in BA (Nigeria) v Home Secretary [2009] UKSC 7; [2009] 3 WLR 1253, and an attempt to rationalise that decision with the earlier Supreme Court decision in ZT (Kosovo) v Home Secretary [2009] UKHL 6; [2009] 1 WLR 348.
Facts:
SM is a national of the Democratic Republic of the Congo, who arrived in the United Kingdom on a false passport on 7 th May 2007 and applied for asylum. His application was refused on 4 th June 2007 and on 5 th June 2007 he was given formal notice of Refusal of Leave to Enter with a decision to make removal directions. His appeal was dismissed by an Immigration Judge on 28 th August 2007. Reconsideration of this decision was refused on 28 th November 2007. On 24 th July 2008, his former representatives made further submissions. In early 2008 he had entered into a relationship with a woman who was a refugee from the Democratic Republic of the Congo and with whom he underwent a traditional wedding ceremony on 31 st January 2009. The further submissions were refused on 30 th April 2009. He was detained on 20 th May 2009. Further submissions based on Article 8 of the European Convention on Human Rights were made on 26 th May 2009, and the present judicial review proceedings were begun on 27 th May 2009. On the following day an injunction was obtained restraining his removal. A further letter dealing with and rejecting the Article 8 submission was served on 22 nd June 2009. Blake J granted permission on 8 th July 2009. He indicated that it was arguable on the basis of the Court of Appeal decision in BA (Nigeria) [2009] EWCA Civ 119; [2009] QB 686, that SM had an in-country appeal, although there was force in the Secretary of State's submission that the Article 8 claim did not outweigh the need for immigration control.
ZA is a Nigerian national, who arrived illegally in the United Kingdom in April 2002. He sought asylum on 28 th May 2003 after he had been arrested for working illegally. The Secretary of State rejected his claim on 5 th June 2003, on which date the Secretary of State gave him written notice in compliance with the Immigration (Notices) Regulations 2003 of a decision to remove him as an illegal entrant or other immigration offender. On 13 th August 2003, his appeal was dismissed by an adjudicator. At some stage he absconded and he was recorded as an absconder on 22 nd June 2005.
On 20 th September 2008, ZA was arrested for suspected immigration offences and possession of drugs, although no charges were ultimately brought against him. On 23 rd September 2008, his representatives made further submissions based on Article 8 of the European Convention on Human Rights and claimed that he fell within the Secretary of State's Legacy Programme. The Secretary of State rejected these further submissions in a letter dated 24 th September 2009. Removal directions were set for 17 th October 2009, but these were cancelled when he began judicial review proceedings on 14 th October 2009. On 11 th December 2009, Dobbs J refused permission finding that the claim was hopeless. Further removal directions were set for 21 st December 2009, but ZA renewed his application for permission orally and an injunction was granted preventing his removal. We grant his renewed application for permission to bring these proceedings.
Each claimant contends that they have a right of appeal against the Secretary of State's rejection of their Article 8 claims. The Secretary of State contends that he has made no immigration decision which attracts a right of appeal and that he is not obliged to make one. He relies on the original decisions to remove the claimants.
Legislation:
Section 82 of the 2002 Act enables a person to appeal to the Tribunal “where an immigration decision is made in respect of [him]”. Section 82(2) defines “immigration decision” to include (a) refusal of leave to enter the United Kingdom; (b) refusal of entry clearance; (c) refusal of a certificate of entitlement under Section 10 of the Act; (d) and (e) refusal to vary or variation of a person's leave to enter or remain in the United Kingdom if the result is that the person has no leave to enter or remain; (f) revocation of indefinite leave to enter or remain; (g) to (i) various removal decisions; (j) a decision to make a deportation order; and (k) a refusal to revoke a deportation order. Thus, subject to section 83 which is not material for present purposes, a decision rejecting an asylum or human rights claim is not itself an immigration decision under section 82. It is a consequent refusal, variation, revocation or removal decision which is an immigration decision which generates a right of appeal.
Section 84 provides grounds upon which an appeal against an immigration decision must be brought. These include, by section 84(1)(g) “that removal of the appellant … in consequence of the immigration decision … would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.”
Section 92 has general provisions for appeals from within the United Kingdom. It provides that a person may not appeal under section 82(1) while he is in the United Kingdom, unless his appeal is of a kind to which section 92 applies. The section applies to appeals against some of the particular immigration decisions in section 82(2), but those do not apply in the present cases. It also, by section 92(4), applies “to an appeal against an immigration decision if the appellant (a) has made … a human rights claim while in the United Kingdom”. Section 113 defines a human rights claim as “a claim made by a person to the Secretary of State … that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with his Convention rights”. By section 12(3) of the Immigration, Asylum and Nationality Act 2006, this definition in section 113 of the 2002 Act is prospectively to be qualified by amendment so as not to include “a claim which, having regard to a former claim, falls to be disregarded for the purpose of this part in accordance with immigration rules”. The amendment has yet to be brought into force, and Lord Hope said in paragraph 19 of his judgment in BA (Nigeria) that it was to be ignored for present purposes.
The Secretary of State, through Mr Blundell, contends that section 92(4) of the 2002 Act does not give the present claimants the right of appeal because, although they may have made a human rights claim, the Secretary of State has not made an appealable immigration decision and is not obliged to do so.
Section 94 of the 2002 Act applies to an appeal under section 82(1) where the appellant has made one or both of an asylum claim or a human rights claim. By section 94(2) a person may not bring an appeal to which the section applies in reliance on section 92(4)(a) if the Secretary of State certifies that the claim or claims is or are clearly unfounded. Sections 95 and 94(9) taken together provide that a person who is outside the United Kingdom may not appeal under section 82(1) on the ground that removal would breach his rights under the European Convention on Human Rights, unless he is a person in relation to whom the Secretary of State has issued a certificate under section 94. In that event, such an appeal is to be considered as if he had not been removed from the United Kingdom. Section 96 provides that an appeal under section 82(1) against an immigration decision may not be brought if the Secretary of State or an immigration officer certifies that the claim relies on a matter that could have been raised in an appeal against an earlier immigration decision where the person was notified of a right of appeal against that earlier decision, whether or not an appeal was brought.
In R v Secretary of State ex parte Onibiyo [1996] QB 768, an applicant whose original asylum claim had been rejected by the Secretary of State and on appeal made a fresh claim based on further material. The Secretary of State considered that the basis of the claim had not altered and indicated that, since he had made no fresh decision, there was no available avenue of appeal. The Court of Appeal, considering the matter under earlier legislation which did not contain provisions equivalent to those in sections 94 ...
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