The Queen (on the application of YZ (China)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Elias,Lord Justice Lloyd |
| Judgment Date | 26 July 2012 |
| Neutral Citation | [2012] EWCA Civ 1022 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 July 2012 |
| Docket Number | Case No: C4/2011/2883 |
[2012] EWCA Civ 1022
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Sir Michael Harrison
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lloyd
Lord Justice Richards
and
Lord Justice Elias
Case No: C4/2011/2883
Richard Drabble QC and Ranjiv Khubber (instructed by BHT Immigration Legal Service) for the Appellant
Paul Greatorex (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 19 July 2012
The appellant is a Chinese national who was deported from the United Kingdom to China following a decision by the Secretary of State refusing to revoke the deportation order and certifying the case under s.96(2) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), thus precluding an appeal against the decision. The appellant challenged the lawfulness of the certificate and contended that the effect of the unlawful certificate and his removal from the United Kingdom in reliance on it was to deny him an in-country appeal to which he was entitled. The Secretary of State subsequently withdrew the certificate and agreed to reconsider the refusal to revoke the deportation order, but declined to return the appellant to the United Kingdom pending the further decision and any appeal against it. The appellant applied for an order requiring the Secretary of State to return him. Sir Michael Harrison, sitting in the Administrative Court as a deputy High Court Judge, refused in the exercise of his discretion to make such an order.
The issue in the appeal to this court, for which permission was granted by Jackson LJ, is whether the judge adopted the correct approach towards the exercise of his discretion. The main contention advanced by Mr Drabble QC is that the judge's discretion was not as wide as the judge thought it was: the appellant was entitled under the statutory scheme to an in-country appeal, and this created a presumption in favour of directing the appellant's return to the United Kingdom as the only way in which full effect could be given to the statutory scheme.
The facts in greater detail
The appellant arrived in the United Kingdom in 2001. His claim to asylum was refused but he was granted exceptional leave to remain for four years, and on the expiry of that period he was granted indefinite leave to remain. In November 2007, however, he was convicted of being concerned in the production of a class C drug, namely cannabis, was sentenced to 22 months' imprisonment and was recommended for deportation.
In March 2008 he was served with notice of the decision to make a deportation order against him. It was accompanied by a "one stop" notice under s.120 of the 2002 Act. An appeal was dismissed by the tribunal on 17 July 2008: the tribunal concluded in particular that the appellant did not enjoy family life in the United Kingdom within the meaning of article 8. Subsequent attempts to challenge the tribunal's decision were unsuccessful and appeal rights were exhausted on 14 September 2008.
The deportation order was signed in February 2009. The appellant, who had been at liberty since early June 2008 following his release from prison and immigration detention, was detained again in November 2010 and was served with the deportation order on 2 February 2011.
On 16 February 2011 the appellant's representatives applied for revocation of the deportation order, asserting a change of circumstances, namely that he had been in a relationship for approximately 4 years with a Chinese woman (XZ) whose own long-term immigration status was unresolved; they had lived together following his release from prison; and she had given birth to a child by him on 13 November 2010.
By a decision letter dated 23 February 2011 the Secretary of State refused the application for revocation and certified the case under s.96(2) of the 2002 Act. The reasons for the refusal to revoke included reference to the tribunal's decision in July 2008 as showing that the appellant and XZ were not in a subsisting relationship at that time and had not lived together following A's release from detention in early June 2008. Other matters relied on were that, although the appellant had been served with a one-stop notice, he had not made the UK Border Agency aware of any change in circumstances, such as that he was in a subsisting relationship and had fathered a child; when interviewed following his detention in November 2010 he had said that he had no family in the United Kingdom and that he was single and had no children; and an application on his behalf in December 2010 for temporary release made no reference to a partner or child as reasons for him to be released. Points were also made about the absence of proof that the appellant had a child or that he had been residing with XZ. It was said that the raising of these matters for the first time after service of the deportation order could only be seen as a deliberate attempt to frustrate the appellant's removal.
The reasons for the certification under s.96(2) referred to the four-stage process through which the Secretary of State was required to go, as set out in R (J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin). What was said in relation to the third stage was this:
"Third the Secretary of State must form the opinion that there is no satisfactory reason for that matter not having been raised in an appeal against the old decision (section 96(1)(c)) or that there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice (section (96(2)(c)). As stated above, your client was served with a 'one stop' notice on 19 March 2008, which he exercised on 17 July 2008. Your client's family life was considered at appeal and no further evidence has been provided and no satisfactory explanation has been given as to why he failed to do this."
The appellant's representatives responded immediately with a letter before claim on 23 February, followed on 24 February by the filing of a judicial review claim, challenging both the refusal to revoke and the certification. Among the points taken were that the birth of the appellant's child post-dated the appeal against the deportation order and could not have been raised at that time, that the one-stop notice related to the deportation appeal, and that the fact that the appellant might have had a subsequent opportunity to put the Secretary of State on notice of the birth of his child was not relevant for the purposes of a certificate under s.96(2). A request for urgent consideration of an application for interim relief was made on the same day as the filing of the judicial review claim form.
This led to the application for permission to apply for judicial review being considered urgently on the same day, 24 February, by Mr CMG Ockelton sitting as a deputy High Court Judge. He refused permission, stating that the reasoning in support of the Secretary of State's refusal to revoke the deportation order was entirely sound and that there was no arguable basis why the Secretary of State was wrong to certify the case. He further ordered that renewal of the application for permission was not to operate as a bar to the removal of the appellant from the United Kingdom.
The appellant's representatives gave notice on the same day that the application for permission to apply for judicial review would be renewed at an oral hearing. They did not, however, make an oral application for a stay of removal pending that hearing, despite the fact that the clear effect of Mr Ockelton's order was that the renewed application for permission did not of itself give rise to any bar to removal.
The Secretary of State proceeded to remove the appellant to China on 3 March 2011. The appellant remains in China.
On 28 July 2011 the renewed application for permission to apply for judicial review was heard by Ms Karen Monaghan QC, sitting as a deputy High Court Judge. She granted permission and ordered an expedited hearing of the case, to take place in September.
On 22 September 2011, a week before the case was due to be heard, the Secretary of State informed the appellant's representatives that she had given the matter further consideration and, wishing to take a "pragmatic approach" to the resolution of the case, was willing to offer settlement of the claim by withdrawing the certificate under s.96(2), giving the appellant 21 days to make any further representations, and undertaking to reconsider within 3 months thereafter the application to revoke the deportation order. The Secretary of State stated that she was not willing to return the appellant (whether at public expense or the appellant's personal expense) for any appeal. She did not consider that he was at risk in his home country. She noted that there was no particular need for him to be in the United Kingdom to submit further evidence or to bring any appeal. Further, given that this was a deportation case, she considered there to be public interest reasons for him to remain out of the United Kingdom.
There followed during the next few days what Sir Michael Harrison described as a flurry of correspondence, in the course of which the Secretary of State agreed to extend the period of 21 days for further representations to 28 days and agreed to pay the appellant's reasonable costs up to 28 September. She denied that she had in effect accepted that her original decision...
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