NJ (Sri Lanka) & Ors v Secretary of State for the Home Department

This is a renewed application for permission to appeal against the decision of Langstaff J in the Administrative Court by which he refused permission to seek judicial review of certain decisions of the Secretary of State culminating in a decision to remove the applicant to Sri Lanka. The only live issue, or issues, for the purposes of the present application concern Article 8 of the European Convention on Human Rights. Permission to appeal was refused on consideration of the papers by Richards LJ on 27 February 2007.

The applicant is a Sri Lankan national of Sinhalese ethnicity, born on 20 October 1961. She arrived in the United Kingdom on 11 August 2000 with her husband and four dependant children. The family claimed asylum, as they asserted on 30 August 2000, alleging a fear of persecution by the Tamil organisation, the LTTE.

That was refused by a letter dated 8 June 2001. The husband's appeal against the refusal was dismissed by an adjudicator in a decision promulgated on 19 May 2003. Human rights as well as asylum grounds had been put forward on the appeal. The adjudicator held there was no risk of death or ill treatment within ECHR Article 2 or 3 and stated, page 68 of the bundle:

“In these circumstances Article 8 cannot stand either.”

The Immigration Appeal Tribunal, as I understand it, refused leave to appeal to it. There may have been some proceedings or applications in the Court of Session. All this process was going forward in Scotland. However, it seems nothing came of that and, at length, representations were made to persuade the Secretary of State to grant indefinite leave to remain to the family under what is called the Family Concession or Family Amnesty Policy. That was to the effect, so far as relevant, that indefinite leave would be granted to persons who had claimed asylum before 2 October 2000, if they had dependant children living with them at that date.

The applicant’s family was refused on 7 December 2004 on the ground that asylum had not been applied for until after 2 October 2000. The Home Office did not accept that the claim had been made on 30 August 2000, which was, as I have said, the date asserted by the family. The Home Office said that the claim had not been made until, I think, 11 May 2001.

However, the applicant’s solicitors produced a letter of 30 August 2000, on its face intimating a claim but the Home Office response was to allege that it had never been received. Follow up refusal letters, after further representations, were sent by the Home Office on 2 March 2005, page 69 and 10 April 2006, page 70.

Langstaff J was to hold that the Home Office were entitled to conclude, as they did on this issue relating to the Family Amnesty Policy, that it appeared that the family’s representative in 2000 had failed to get the application in before the due date. This point regarding the policy is no longer pursued as a freestanding ground for judicial review, though it figures within the submissions relating to Article 8, and to these I now turn.

This is how Langstaff introduced the matter at paragraph 13:

The learned judge was disposed to consider at paragraph 16 that the Secretary of State was in error in declining to treat the representations as raising new issues, since the representations invited attention to the potential disruption to family life which removal would entail in light of the passage of six years since the family came to the United Kingdom and not just in light of events up to 2003. But the judge nevertheless refused judicial review permission because he held, at paragraphs 17 and 18, that the dislocation of the children’s education by removal to Sri Lanka would not constitute interference with family life and/or could not constitute exceptional circumstances, as contemplated by the judgment of the Court of Appeal in Huang.

It is now said on the applicants’ behalf that the Family Amnesty Policy is relevant here because this family was only excluded from the benefits of the policy by their solicitors’ mistake in not getting the asylum application in. That was, so to speak, a marginal matter and in those circumstances the grant of leave to remain now would have only a marginal effect on the maintenance of firm immigration control and the consequence of that, if it be right, is that removal may more readily be adjudged to be disproportionate interference with the right to respect a family life. There is general evidence of social community ties here, developed over the years.

It is also pointed out that the decision of their Lordships House in Huang, on appeal from this court, has dispensed with any “truly exceptional” test and their Lordships’ decision was arrived at after Langstaff J’s judgment had been delivered.

I have concluded that it is arguable that the case made for the applicant and her family has not received the consideration it should have done by the Secretary of State. The adjudicator’s treatment of Article 8 in 2003 was very exiguous and it seems to me that it is for consideration whether the Secretary of State’s reliance on that exiguous consideration in the letter of 10 April 2006 is legally sufficient.

That, together with the development of the law by virtue of the House of Lords’ decision in Huang, just persuaded me that this application for permission should succeed. I grant permission with some misgiving because I take the view, but it will not be for me to decide, that it will be very difficult on the facts here for an Article 8 case to be established, but however that be, I will give judicial review leave for the reasons I have set out.

I will also direct that the substantive judicial review be retained for hearing in this court rather than being returned to the Administrative Court. That is because there has already been an effective inter-parties hearing, with counsel on both sides before Langstaff J. If Mr Lewis, for the applicant, wishes me to take any other course I will hear him in a moment.

There is one other matter. As a result of a conversation with Keene LJ, as it happens, I am aware of the fact that he also has before him, I think this morning, a permission application which concerns the change of the law effected by their Lordship’s House in Huang. I have no idea whether Keene LJ has or will give permission, but if permission is given in that case the listing office might profitably consider whether the two matters should be heard together.