RG, R (on the application of) v Secretary of State for the Home Department

The applicant, represented today by Mr Martin, is an Ecuadorian national who came here in 1997 with her one year old son E, seeking asylum in her sister-in-law’s name. No ulterior motive affecting her eligibility in this country has ever been found or suggested, and Mr Martin says that the reason for it was to deflect the attention of the Ecuadorian authorities from the applicant, since she feared some kind of reprisal if they learned she was seeking asylum here. She was able in 2004 to obtain indefinite leave to remain under the Home Office’s family exercise, a one-off exercise by which, pursuant to a policy for regularising the position of certain asylum seekers, persons who had dependent children with them in the year 2000 and were not otherwise excluded were given indefinite leave to remain. The applicant continued to use the false name until, in September 2005, police, raiding her home in search of her brother, found documents which showed what her real name was. Her ILR has consequently been revoked and it is proposed to remove her to Ecuador, together with her son E and his younger sister L, whose father is now divorced from the applicant and married to a British citizen.

Silber J on the papers, and Crane J on an oral renewal, refused permission to seek judicial review of this decision. Crane J held that it did not matter that there had been no apparent purpose or profit in using the sister-in-law’s name. If, when the applicant returned from Ecuador after a visit of two months in 2004, she had disclosed her true name, she would not have been allowed back in. As to article 8, he applied an exceptionality test which is now known since the decision of the House of Lords in Huang to be mistaken, and held that even if the facts were exceptional, they would not avail the applicant. Richards LJ refused permission to appeal to this court on sight of the papers. He wrote:

“On the first issue it misses the point to consider whether the applicant might have qualified for the grant of indefinite leave to remain if, at the time of applying for it, she had admitted to the earlier use of a false name for her asylum application. The fact is that she made a fraudulent application for indefinite leave to remain by applying for leave in a false name; and I think it plain that the Secretary of State was entitled to revoke the leave on discovery that it had been obtained by deception. The first sequence of paragraph 10 of the decision letter of 12 March 2007 addresses that point, which provides a sufficient basis for disposing of this part of the case.

As to the Article 8 issue, even though the decision letter of 12 March 2007 and the judgment of Crane J refer to the test of ‘exceptionality’ in Huang which has now been disproved by the House of Lords in that case, the error is not material. Nor is it material that the decision letter does not refer in terms to how the matter might be viewed by an immigration judge. The reasoning is that removal would be ‘clearly proportionate’ and that ‘there is no conceivable basis’ for the contention that removal would be in breach of the applicant’s article 8 rights (see e.g. para 16 of the decision letter). If that reasoning is correct, the Secretary of State was entitled to certify the claim. In my view it is correct. On its facts this is a materially different case from Edore, where the children were emotionally dependent on the father as well as financially supported by him.”

The applicant’s case under the one-off family policy is not now pursued. This is in light of the reasoning of Crane J; but it is interesting that the policy recognised that it was not every use of a false name which was to disqualify an applicant; so that where, however oddly, a bare alias was used without any apparent ulterior motive, the individual would not for that reason alone fall outside the policy. If so, some further reason might have been necessary if the benefit of the policy was to have been withdrawn from the applicant. Turning, however, to article 8, upon which the proposed appeal is now entirely predicated, the significance of Huang is that the effect under article 8 in a case like this, which plainly impacts on family life, has to be gauged in terms of proportionality not of exceptionality. Here too it must be relevant, one would think, that the use of the false name which, it is to be assumed legitimately, provoked the withdrawal of indefinite leave to remain, appears to have had no ulterior motive. For it has not, so far as I can see, been suggested that had the Home Office known the applicant’s real name they would have acted any differently at any stage in relation to her asylum claim or her application for indefinite leave to remain. Everything turns, therefore, upon the effect, if any, of the assumption of a false name for the purpose of re-entering the United Kingdom after the visit to Ecuador in 2004.

In the light of what I have mentioned it may be that the reasons for removal following such re-entry are markedly less weighty than they usually are in a case of entry under a false name, and that the countervailing reasons which are said to make removal disproportionate are correspondingly more powerful. It seems to me therefore that this case, as now trimmed by Mr Martin to its essentials, is arguable. I propose, accordingly, to grant permission to apply for judicial review and to direct, subject to anything that Mr Martin may now say, that in view of the judicial unanimity to the contrary which has so far been apparent, the substantive application should remain in this court.