In the matter of an application by Fyneface Boma Emmanson for Judicial Review

JurisdictionNorthern Ireland
JudgeStephens J
Judgment Date11 April 2008
Neutral Citation[2008] NIQB 38
Date11 April 2008
CourtQueen's Bench Division (Northern Ireland)
Year2008
1
Neutral Citation no. [2008] NIQB 38 Ref:
STE7128
Judgment: approved by the Court for handing down Delivered:
11/4/08
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
_______
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY
FYNEFACE BOMA EMMANSON FOR JUDICIAL REVIEW
________
STEPHENS J
Introduction
[1] This is an application by Fyneface Boma Emmanson for judicial review
challenging a number of decisions made on 29 April 2007 by the Secretary of
State for the Home Department. On that date the Secretary of State decided
that the applicant was an illegal entrant to the United Kingdom. Secondly
that he should be removed from the United Kingdom and thirdly removal
directions were set. By these proceedings the applicant seeks to challenge
those decisions. The grounds on which the applicant relies are set out in his
amended Order 53 statement as follows:
a. The Respondent has failed to provide any or
sufficient reasons for the decision to declare the
Applicant an illegal entrant, contrary to the principles
of natural justice and procedural fairness.
b. The Respondent has failed to provide the Applicant
with the opportunity to make meaningful
representations in relation to the impugned decision,
contrary to the principles of natural justice and
procedural fairness.
c. The Respondent made the impugned decisions
without providing the Applicant with any or
adequate access to legal advice, thereby further
denying the Applicant the opportunity to make
meaningful representations, contrary to the principles
of natural justice and procedural fairness.
2
d. The Respondent has failed to apply its own policy,
namely Chapter 50 of the Operation Enforcement
Manual, in that he failed to apply the PACE codes of
conduct to the interview with the Applicant, contrary
to the Applicant’s legitimate expectation.
e. The Respondent has failed to demonstrate to the
standard required by the House of Lords in Khawaja
[1984] 1 AC that the Applicant is an illegal entrant.
f.
g.
h.
i. The Respondent has failed to apply his own policy,
namely Chapter 7 of the Operation Enforcement
Manual in that he has failed to take into account
relevant factors in the exercise of his discretion,
namely the representations or the possible
representations of the Applicant, contrary to the
Applicant’s legitimate expectation.
j. The Respondent has failed to apply his own policy,
namely Chapter 44 of the Operation Enforcement
Manual, in that 72 hours notice was not provided to
the Applicant between the service of the removal
directions and the proposed removal, contrary to the
Applicant’s legitimate expectation.
k. The decision to detain the Applicant is made contrary
to the Respondent’s own policy, and therefore is not
in accordance with the law, and is contrary to Article
5(1) of the European Convention on Human Rights in
conjunction with section 6 of the Human Rights Act
1998 in this and in the following respects:
i. The respondent unlawfully and arbitrarily
blended the exercise of administrative powers
with the exercise of criminal powers;
ii. There was no lawful basis which empowered
the respondent to subject the applicant to the
detailed questioning that occurred between
7am and 7.30am, or further to detain him to
that end, in the absence of any reasonable
3
grounds for suspecting that (a) he had
committed a criminal offence contrary to s. 24A
or 26 of the 1971 Act; or alternatively (b) was
someone in respect of whom directions may be
given pending a decision about what
directions should issue pursuant to paragraph
16 of Schedule 2 to that Act, if the court holds
that that provision applies in the context of this
case.
iii. Given the nature and purpose of the
questioning and the interview the respondent
unlawfully failed to have regard to all relevant
provisions of the PACE Codes of Practice
contrary to s. 66(8) of The Police and Criminal
Evidence (NI) Order 1989 and s.145 of the
Immigration and Asylum Act 1999 and
Chapters 7 and 50 of the OEM. These
provisions would have required the
respondent to advise the applicant, in the
absence of an arrest that he did not have to
submit to questioning and could leave at any
time but if he stayed (or was arrested or
detained) that he had a right to obtain legal
advice.
iv. Unlawfully and contrary to the respondent’s
policy as set out in Chapter 50 of the OEM and
EPU 05/06, a criminal caution was issued in
the absence of the lawful exercise of criminal
powers of arrest or detention
v. If the respondent in questioning him was
exercising administrative powers, then the
respondent acted unlawfully and contrary to
its policies contained in Chapters 7 & 50 of the
OEM and EPU 05/06 in issuing the criminal
caution to him and in failing to advise him that
he did not have to remain for questioning but
that if he did, he had the right to obtain legal
advice (Chapter 7, Chapter 50 -50.3 and 50.1.4-
and PACE Code C 10.2).
vi. Unlawfully and contrary to the respondent’s
policy as set out in Chapter 44 of the OEM the
applicant was not given 72 hours notice that he
was to be removed on 2 May 2007.

To continue reading

Request your trial
3 cases
  • ALJ and A, B and C’s Application
    • United Kingdom
    • Queen's Bench Division (Northern Ireland)
    • 14 August 2013
    ...referred to in paragraphs 17, 42 and 47 of the judgment in the matter of an application by Fyneface Boma Emmanson for Judicial Review [2008] NIQB 38. Also in this case the specific situation is known namely the applicants have had their refugee applications refused in Ireland in a situation......
  • Emmanson's Application (Fyneface Boma) (No 2)
    • United Kingdom
    • Queen's Bench Division (Northern Ireland)
    • 29 July 2009
    ...STEPHENS J Introduction [1] I gave judgment in relation to this application for judicial review and the citation for that judgment is [2008] NIQB 38. The applicant brought an appeal and presented to the Court of Appeal an argument which he accepted had not been advanced at first instance. T......
  • In the matter of an Application by RU for Judicial Review
    • United Kingdom
    • Queen's Bench Division (Northern Ireland)
    • 16 September 2008
    ...or lawful basis to be in the United Kingdom”. [6] At paragraphs [63] to [64] of my judgment in an Application Fyneface Boma Emmanson [2008] NIQB 38, delivered on 11 April 2008, I criticised the failure of the respondent to condescend to any particulars in the forms served in that case. The ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT