Vemenac (Vlado) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MUNBY,MR JUSTICE BURTON |
| Judgment Date | 17 July 2002 |
| Neutral Citation | [2002] EWHC 1636 (Admin),[2002] EWHC 152 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 July 2002 |
| Docket Number | CO/336/2002,CO/336/02 |
[2002] EWHC 152 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
Mr Justice Munby
CO/336/02
MR B TATTERSALL (instructed by Lawson Adefope, Harlesden, London NW10 4NT) appeared on behalf of the Claimant
MISS J RICHARDS (instructed by Treasury Solicitors) appeared on behalf of the Defendant
Mr Tattersall on behalf of the claimant in substance puts forward three reasons why, as he would have it, I should grant permission for judicial review. The first is based upon what he claims to be the Secretary of State's wrongful evaluation of the position in Croatia and of the claimant's risk of exposure if returned there to persecution as opposed to mere discrimination. If that were the only matter in contention I would have no hesitation in dismissing this application. This complaint is in very large measure an impermissible attempt to litigate in the guise of a judicial review of the Secretary of State's decision, an earlier decision arrived at by an adjudicator in relation to which the Immigration Appeal Tribunal refused permission to appeal, and against which decision no challenge in this court ever has been or so far as I can see could successfully have been pursued. Furthermore, and in so far as this part of the complaint is based upon new material, or what might be described as a new claim in comparison to the old claim as put before the adjudicator, the new material, as Miss Richards points out, was confined to a single document, an OSCE Report. This the Secretary of State dealt with more than adequately on the second page of his letter of 14th January 2002, and in circumstances which so far as I can see disclose no arguable basis for challenge or complaint.
Mr Tattersall's second complaint is that the Secretary of State failed to give effect to the claimant's right to respect for his private and family life under Article 8 of the Convention. The submission is that the Secretary of State gave a disproportionate weight to the public interests as against the private interests of the applicant and the young lady with whom the claimant is now associating.
In so far as it has been suggested that the Secretary of State failed to balance the claimant's rights against the rights and freedoms of others and the general public interest, there can be no substance in any such complaint because, as Miss Richards points out, on the final page of his decision letter the Secretary of State asserted in terms that he had "balanced your client's rights against the rights of freedom of others and the general public interest".
In so far as that challenge is more fruitfully put as a challenge to the Secretary of State's balancing exercise, and as linked with the assertion that he gave disproportionate weight to the public interest, Mr Tattersall, notwithstanding the attractive way in which he has put the matter, has wholly failed to persuade me that there is any even arguable basis of complaint. I can do no better, because the reasons as set out there entirely accord with my own view of the matter, than to quote paragraphs 3 and 4 of the summary of the grounds for contesting the claim lodged on behalf of the Secretary of State:
"3. The Secretary of State correctly balanced the rights of the Claimant under Article 8 ECHR with the legitimate aim of maintaining an effective immigration policy under Article 8(2). In particular, the Secretary was entitled to have regard to the short length of the Claimant's relationship with Ms Derrick and the fact that they are not cohabiting.
4. More generally, Article 8 does not impose an obligation on the Secretary of State to respect the choice by unmarried partners as to their country of residence and to accept the non-national partner for settlement in the United Kingdom: see R v Secretary of State for the Home Department ex parte Mahmood (Court of Appeal, 8th December 2000); Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, para 68."
I entirely agree.
The decision by the Secretary of State and his balancing of the competing rights and interests under Articles 8(1) and 8(2) of the Convention was, as it seems to me, entirely appropriate and I can detect no even arguable basis of challenge.
However, Mr Tattersall's third point does seem to me to have at least some arguable merit. It arises in this way: the Secretary of State in that same letter has certified the case under section 73(8) of the Act with the consequence that section 73(9) of the Act applies. As Miss Richards accepts, section 73(8) at least on the face of it imposes a double condition before there can be a certification, namely that the Secretary of State has to be of the opinion that
(1) the purpose of the application was to delay removal from the United Kingdom; and
(2) that there was no other legitimate purpose for making the application.
Mr Tattersall in effect accepts—he certainly does not argue to the contrary—that at least one purpose of the claimant's application to the Secretary of State was indeed to delay his removal from the United Kingdom. But he asserts that the claimant had, at least arguably, other legitimate purposes for making the application—that is to say his interest in pursuing a claim which was bona fide and founded upon reasonable grounds to protect his Article 8 rights and in particular, relying upon Beljoudi v France (1992), his right to respect for his private life in as much as that private life is represented by the sum of all the ties, both personal and economic, which a person makes in the place where he or she lives, in the present case the United Kingdom.
Miss Richards in the course of responding to that came very close to suggesting that adopting a purposive construction of section 73(8) the second of those two requirements added little or nothing to the first and that certainly in the circumstances of the present case, as she would have it, the very same facts which went to establish the one equally established the other. It may be that she is right both in relation to her submissions as to the correct construction of section 73(8) and also as to its application in the circumstances of the present case. As against that, it seems to me that Mr Tattersall has identified at least some arguable basis for seeking to challenge both Miss Richards' assertion as to the meaning of section 73(8) and also as to its application in the circumstances of the present case.
Accordingly, although I refuse permission in relation to the first and second of the three grounds which I have mentioned, I am persuaded by Mr Tattersall that it is appropriate, for the reasons which I have briefly sketched out, to grant permission in relation to the third of those grounds. Of course, as he points out, since the second limb of section 73(8) refers in terms to the purpose of the claim being made by the claimant, the consideration of the arguments in relation to the third ground will to an extent cover ground that might in a different context have been traversed in relation to submissions on the first and second grounds where I do not give permission. Be that as it may, my conclusion is that Mr Tattersall, although there is no even arguable merit in his first and second grounds, has persuaded me that there should be permission granted in relation to the third ground.
I should add that the matter has come before the court with what might appear to the uninformed observer to be quite astonishing rapidity, the Secretary of State's letter having been written as recently as 14th January 2002, less than three weeks ago. The reason for this is that when the case came before me, as it happened, on the papers a few days ago, an urgent interlocutory hearing was requested because at that time the claimant was in custody. The matter was accordingly listed today on my directions as being one that required an urgent oral hearing, not merely of the application for permission but also of the application for bail. In the event, as I am informed by Mr Tattersall, his client has already been released on bail, and that matter is no longer of concern to the court. It has adventitiously had a desirable effect, namely that this case has been progressed by the court rather more speedily than would otherwise probably have been the case.
Are there any particular directions I should give?
The only direction I was going to seek was that a transcript of your Lordship's judgment be made available to the parties. In cases where permission has been granted in some respects but not others it is always helpful in terms of the substantive hearing.
I would be happy, I am sure, to agree with that. Your Lordship there is one other point because of the haste of this case I gather that a legal aid certificate has not yet been obtained. May we obtain that retrospectively in the circumstances?
MR JUSTICE MUNBYI am not sure I have any power. I have always been brought up to believe that there is no power on earth, certainly judicial power, to retrospectively grant legal aid. I would very much hope that there is. If I have any such power then I am happy to exercise it in your favour in a case where it is entirely appropriate it should be exercised, but I strongly suspect that I do not have any such power.
If we may approach the court offices at some point and enquire about whether there is a power. If there is a power would you be quite happy to grant it, my Lord?
MR JUSTICE MUNBYYes. I will give permission on the basis I have indicated. I will direct a transcript...
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