The Queen (on the application of OA) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Karen Steyn |
| Judgment Date | 15 March 2017 |
| Neutral Citation | [2017] EWHC 486 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 March 2017 |
| Docket Number | Case No: CO/3466/2016 |
[2017] EWHC 486 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Karen Steyn QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/3466/2016
David Jones (instructed by Sutovic & Hartigan) for the Claimant
William Hansen (instructed by Government Legal Department) for the Defendant
Hearing dates: 21 February 2017
Karen Steyn QC:
A. Introduction
The primary issue is whether the Secretary of State for the Home Department erred in determining that the Claimant's further submissions dated 20 November 2015 did not constitute a "fresh claim" as defined in paragraph 353 of the Immigration Rules HC 395. In the context of this first issue, a subsidiary question arises as to whether the Claimant is entitled to rely on evidence submitted (arguably) after the decision was made and whether the Defendant is entitled to rely on a supplementary letter.
The second issue is whether the Claimant's detention from 22 June 2016 to 19 July 2016 was in breach of the Hardial Singh principles and therefore unlawful. The Claimant had also asserted in his grounds that his detention was unlawful because it failed to comply with the requirements of the statutory regime applicable to detention of a person who had previously been granted bail by an Immigration Judge. However, in light of AR (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 807, Counsel for the Claimant indicated at the outset of the hearing that the latter argument was not pursued.
Permission was granted by Neil Cameron QC, sitting as a Deputy High Court Judge, at a renewed oral permission hearing on 14 October 2016 (Lang J having refused permission on the papers).
On the Claimant's application, which was unopposed, I granted anonymity with a view to protecting the interests of the children referred to in this judgment.
B. The Facts
The Claimant is a national of Nigeria. He was born and lived in Nigeria until October 1987 when, at the age of 11, he was brought to the United Kingdom by his stepfather. They entered the United Kingdom illegally (but that is not a matter for which the Claimant can be held responsible, given his age at the time).
The Claimant has lived here for nearly 30 years. He attended school in this country for five years, until July 1992. His mother and siblings also live, and work, in the United Kingdom.
The Claimant's partner, PV, is a British citizen. They have lived together since September 2011 (save for the period, detailed below, when the Claimant served a custodial sentence). They had a son, LA, who was, sadly, still-born in April 2013. Their daughter, HA, was born on 20 March 2015. She lives with the Claimant and PV. The Secretary of State acknowledged, in the challenged decision and at the hearing before me, that the Claimant shares parental responsibility for HA with PV, and that he plays a significant and meaningful positive part in HA's life, and assumes a significant degree of responsibility for her welfare.
The relationship between the Claimant and PV began (and LA was conceived) at a time when the Claimant had Indefinite Leave to Remain ("ILR") in the United Kingdom.
The Claimant and PV each also have older children from earlier relationships. The Claimant has two sons, TA and DQA, both of whom are now over 18 years old, and a daughter, DA, who is now 16 years old, none of whom lives with him. PV has a son, SR, who is now over 18 years old, and a daughter, KA, who is 16 years old. KA lives with the Claimant and PV. The Secretary of State has accepted that the Claimant shares parental responsibility for her with PV, and plays an active, significant and meaningful role in KA's life, involving a significant degree of responsibility for her welfare.
All the children are British citizens and they have all lived in this country throughout their lives so far.
Having entered the United Kingdom illegally, the Claimant did not seek to regularise his immigration status until the age of 28. On 21 June 2004 he submitted an application for ILR. Nearly four years later, on 16 April 2008, the Secretary of State refused his application. However, the Claimant appealed successfully to the First Tier Tribunal ("FTT") following which, on 31 October 2008, the Secretary of State granted him ILR.
Given the repeated assertion in the decisions and submissions before me that the Claimant has not submitted any evidence to substantiate his claim to have arrived in the United Kingdom on 17 October 1987 with his step-father, I note that Immigration Judge Neuberger observed in a decision promulgated on 3 July 2008 (which was not the subject of appeal), that after coming to this country at the age of 10 or 11 "he had gone to school until 1992 and he produced ample evidence to satisfy me that this indeed was the case". The independent evidence that he came to the United Kingdom in 1987 includes a letter from his school confirming he began attending school in the autumn term of that year and a letter from his former GP's practice, indicating he had registered as a patient on 2 November 1987.
Prior to obtaining ILR, the Claimant had been convicted on four occasions, and he had been given non-custodial sentences:
(1) On 24 June 1996, at the age of 20, he was convicted of handling stolen goods and possessing an offensive weapon in public, and fined £50;
(2) A few months later, on 31 October 1996, he was convicted of possessing controlled drugs (Class B) with intent to supply, and fined £150;
(3) On 10 September 2002, at the age of 26, the Claimant was convicted of possessing controlled drugs (Class B), for which he was given 12 months' conditional discharge; and
(4) On 16 September 2004, aged 28, the Claimant was convicted of obtaining property by deception, for which he was sentenced to 100 hours' community punishment and given a 2 year community rehabilitation order.
As I have indicated, just over four years after the Claimant's conviction in respect of the last of these offences he was granted ILR.
The offence: On 9 October 2012, the Claimant was convicted of possession of Class A controlled drugs with intent to supply. He pleaded guilty and was sentenced to three years' imprisonment. For the purposes of sentencing, the judge accepted that the Claimant found a bag containing about 150 grams of cocaine, crack cocaine and heroin in a shopping trolley outside a property to which he had access, having seen somebody else hide or deposit it in suspicious circumstances. By his plea, the Claimant accepted he intended to pass on or sell those drugs for profit.
On 19 November 2012, the Secretary of State wrote to the Claimant that he was liable to deportation and asked him to provide any reasons why he considered that he should not be deported. The Claimant and PV provided reasons opposing his deportation on 22 January and 28 May 2013.
The Deportation Order: On 14 March 2014, the Secretary of State served a deportation notice on the Claimant. The Secretary of State considered the Claimant's claim that paragraph 399(a) of the Immigration Rules applied by reason of his family life with TA, DQA, DA, SR and KA; and paragraph 399(b) by reference to his relationship with PV. She concluded that he did not meet the criteria under either paragraph and there were no exceptional circumstances raised which would outweigh the public interest in the Claimant being deported.
On 21 March 2014, the Claimant lodged an appeal against the decision of 14 March 2014. The Claimant was detained under immigration powers on 9 April 2014, on completion of his custodial sentence, and released on bail, subject to reporting requirements, on 23 April 2014.
The FTT Decision: The FTT allowed the Claimant's appeal on 7 October 2014:
(1) FTT Judge Russell first considered the claim to family life with the Claimant's (then) three natural children and two step-children. He found that "the appellant has not established that it would be unduly harsh for the children to remain in the UK without him" ([29]). The factual foundation on which this finding was based was FTT Judge Russell's assessment that "the appellant plays a minimal role in the lives of the children" ([29]).
(2) Then the Judge addressed paragraph 399(b) and the position of the Claimant's partner, PV. He took the view that there was an insurmountable obstacle to PV following the Claimant to Nigeria, namely, if she did so, she would have to leave her two children in the United Kingdom. This was so because the Secretary of State accepted that it would be unduly harsh to expect the children to move to Nigeria. He therefore considered it would be unduly harsh for PV to follow the Claimant to Nigeria. The Judge also took the view that for PV to remain in the United Kingdom without the Claimant would have an unduly harsh impact on her because she would have to raise their joint child without him.
(3) The Claimant and PV's youngest child, HA, had not yet been born. PV was pregnant at the time of the FTT hearing, but she was "still in her first trimester" ([32]). Consequently, the question whether it would be unduly harsh to expect HA to move to Nigeria with her father, or to remain in the United Kingdom without him, was not considered. It was only in the context of PV's rights that he Judge took into account the fact that the Claimant and PV were expecting a child together, whilst making clear that he did "not attach too much weight to the needs of a child yet to be born"...
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