Rust Consulting v PB
| Jurisdiction | England & Wales |
| Judge | THE DEPUTY JUDGE |
| Judgment Date | 12 October 2011 |
| Neutral Citation | [2011] EWHC 2936 (Admin) |
| Date | 12 October 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1736/2011 |
[2011] EWHC 2936 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Sir Michael Harrison
(Sitting as a Deputy High Court Judge)
CO/1736/2011
Mr R Khubber (instructed by Brighton Housing Trust) appeared on behalf of the Claimant
Ms A Rogers (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Introduction
The claimant is a Chinese national whose application for judicial review originally related to the defendant's decision, dated 23 February 2011, to refuse to revoke a deportation order made against him on 9 February 2011 and, more importantly, to the defendant's decision of the same date to certify the claimant's application pursuant to section 96(2) of the Nationality, Immigration and Asylum Act 2002. That certification removed the claimant's right to appeal against the defendant's decision to refuse to revoke the deportation order.
Matters have, however, moved on since then. On 24 February 2011, Mr CMG Ockelton, sitting as a Deputy High Court Judge, refused the claimant's application for permission to apply for judicial review and he ordered that renewal of the application was not to operate as a bar to the claimant's removal. Although the claimant was due to be removed on that day, he was in fact removed to China on 3 March 2011, as permitted under the order of Mr Ockelton. The claimant's permission application had been renewed on 24 February 2011 but no further steps had been taken in the meantime to prevent his removal. The claimant's renewed permission application was heard on 28 July 2011 by Karen Mohaghan QC, sitting as a Deputy High Court Judge. She granted permission to apply for judicial review and ordered an expedited hearing to take place in September 2011.
On 22 September 2011, the defendant wrote to the claimant's solicitors saying that she had given the matter further consideration and, wishing to take a pragmatic approach to resolution of the case, she was willing to offer settlement of the claim by withdrawing the certification under section 96(2) of the 2002 Act, giving the claimant 21 days to make any further representations and undertaking to reconsider the claimant's application to revoke the deportation order within three months thereafter. In that letter, the defendant also stated that she was not willing to return the claimant to the United Kingdom for any appeal as she did not consider that he was at risk in China, there was no need for him to be in the UK to bring any appeal and there was a public interest reason for him to remain out of the UK as it was a deportation case.
There was a flurry of correspondence between the parties during the next few days during which the defendant agreed to extend the period of 21 days for further representations to 28 days and she agreed to pay the claimant's reasonable costs up to 28 September 2011. She denied the claimant's solicitor's assertion that she had, in effect, accepted that her original decision had been flawed, reiterating that she had agreed to withdraw the decision on a pragmatic basis.
The position therefore now is that, with the defendant's agreement to withdraw the certification under section 96(2) of the 2002 Act, the only remaining issue in this case is whether the court should require the defendant to return the claimant to the UK whilst his case is reconsidered.
Background
The factual background to this case is that the claimant arrived in the UK in 2001. He sought asylum which was refused, but he was granted exceptional leave to remain for four years. When that period expired, he was granted indefinite leave to remain in 2005. In November 2007, he was convicted of being concerned in the production of a Class C drug and he was sentenced to 22 months' imprisonment and recommended for deportation. The sentencing judge described the claimant's wholesale cultivation of cannabis on a significant scale as a very serious matter striking at the fundamentals of the organisation of the community.
In March 2008, the claimant was served with a notice of decision to make a deportation order. That decision was accompanied by a "one stop" notice under section 120 of the 2002 Act. He appealed against that decision, but the Tribunal dismissed his appeal in July 2008, concluding in respect of his human rights appeal that he did not enjoy family life in the UK within the meaning of Article 8 of the ECHR. Subsequent challenges to that decision were refused and his appeal rights were exhausted by September 2008.
A deportation order was signed in February 2009. He was detained in November 2010 and he was served with the deportation order on 2 February 2011.
On 18 February 2011, the claimant made an application to revoke the deportation order, asserting a change in circumstances. The defendant refused that application on 23 February 2011 and certified his case under section 96(2) of the 2002 Act. It is that certification which was withdrawn by the defendant on 22 September 2011.
In making his application dated 18 February 2011, the claimant had asserted that he had been in a relationship for four years with Xia Zhang, that they had lived together since he came out of prison and that they had a child together on 13 November 2011.
In dealing with that aspect, the defendant, in her decision letter of 23 February 2011, referred to the Tribunal's decision in July 2008 as showing that they were not in a subsisting relationship in 2008 and stated that they did not live together when the claimant came out of prison. She considered the various documents produced by the claimant, concluding that they did not show that the claimant was living with Miss Zhang in a subsisting relationship. So far as paternity of the child is concerned, the defendant referred to the fact that, when interviewed on 22 November 2010 after being detained, the claimant had said that he had no family, he was single and he had no children. Furthermore, no details of the father were shown on the birth certificate. Finally, the defendant referred to the fact that the claimant only raised the issue of his partner and child three months after he had been detained and since the service of the deportation order.
Claimant's submissions
The claimant in this case has submitted that it would be reasonable, proportionate and in the interests of justice for the court to order the defendant to return the claimant to the UK pending the making of the relevant immigration decision and the determination of any subsequent appeal. Mr Khubber, who appeared on behalf of the claimant, made a large number of points in support of that submission. I only intend to refer to the main points.
Firstly, it was said that it can reasonably be inferred from the defendant's decision to withdraw the certificate and to pay the claimant's costs that the decision to certify the claimant's application was legally flawed. My attention was drawn to paragraph 63 of Pill LJ's judgment in R (on the application of Bahta & Ors) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895, where he expressed serious misgivings about the Secretary of State's recent practice to try and avoid costs when a claim is settled for "purely pragmatic reasons". Pill LJ said that a clearly expressed reason was required in such cases.
Secondly, Mr Khubber went further and submitted that the decision to certify the claimant's case was unlawful because, having regard to the provisions of section 96(2) of the 2002 Act, the section 120 notice that was served on the claimant expired after the Tribunal's appeal decision in July 2008 and there was, after that, no ongoing obligation on the claimant to mention, pursuant to that notice, the subsequent strengthening of his relationship with his partner as evidenced by the birth of their child. The defendant's certification decision was said to be contrary to the second, third and fourth stages of the certification process as referred to in paragraph 106 of the judgment of Stadlen J in R (on the application of J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin).
Thirdly, the defendant's flawed decision denying the claimant an in-country appeal was said to have rendered his removal all the more unreasonable because, had it not been made, he would not have been removed. It impacted on his Article 8 rights and the defendant should not be entitled to secure an advantage from it. By the time of the defendant's fresh decision, the claimant would have been separated from his partner and child for about ten months at an early stage of the child's development.
Fourthly, it was submitted that the claimant's presence in the UK was necessary for him to give oral evidence on the issue between the parties as to the extent of his relationship with his partner and the impact on her and the child, and to provide instructions to his solicitors. Reference was made to the remarks of Sedley LJ in BA (Nigeria) v Secretary of State for the Home Department [2009] QB 686 at paragraph 21, that out of country appeals have a degree of unreality about them and that they only succeed in the rarest of cases.
Fifthly, it was claimed that there were real difficulties in obtaining DNA evidence relating to paternity of the child due to the claimant's presence in China. However, although the defendant did not accept that that was impossible, in a letter dated 28 September 2011 she stated that...
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