Apata, R (On the Application of) v Secretary of State for the Home Department

This is an appeal from the order of John Bowers QC, sitting as a deputy High Court Judge ([2015] EWHC 888 (Admin)), who dismissed the appellant’s claim for judicial review of removal directions set by the Secretary of State on 8 January 2013 to remove her to Nigeria. Permission to appeal was given by the deputy judge. At the conclusion of the hearing we announced that the appeal would be dismissed. These are my reasons for joining in that decision.

The appellant is a Nigerian national born on 10 January 1967. She married Alfred Apata and had a daughter, Elizabeth. She attempted to enter the United Kingdom illegally on 11 May 2004 by using a forged Swaziland passport. She was refused leave to enter. She initially maintained that she was a Swazi national but then claimed asylum admitting that she was Nigerian. The reason she advanced for needing protection was that she had been sentenced to death by a Sharia court for adultery, that allegations had been made that she was a witch and that she converted Muslims to Christianity. Her account was rejected by the Home Office and then on appeal. She was roundly disbelieved by the judge. The appellant disappeared, but in November 2007 she attended a job interview at which she produced a Nigerian passport with what appeared to be a Home Office stamp granting indefinite leave to remain together with a document evidencing a national insurance number. Both were forgeries. In due course she was convicted on two counts relating to those forged documents and on 29 January 2009 she was sentenced to six months’ imprisonment.

In the meantime the appellant had made an application for an EEA residence card on the strength of a suggested durable relationship with a Frenchman, Anatole Jean-Guy Alima. That application was refused on 5 August 2010. The appellant appealed unsuccessfully to the First-tier Tribunal. The judge was not satisfied that she was in a relationship with the man at all, let alone an enduring one. He did not give any evidence, oral or written, in the proceedings and no evidence of a recent relationship was produced to the judge.

Whilst waiting for this application to be resolved, the appellant took a job as an operations manager with an organisation known as Independent Living Alliance. She was not entitled to work. She dishonestly represented herself as being someone called Susanna Karbajal. She obtained the job by providing a false driving licence and false references. She was rumbled when concerns emerged about her ability to drive. She was prosecuted in respect of those false documents, pleaded guilty, and was sentenced to eight months and seven days’ imprisonment on 23 June 2011. In mitigation the appellant urged that her circumstances had recently changed because on 4 March 2011 she had married a Mr Bamidele, a British national of Nigerian origin. On 19 May 2011 she made an application for indefinite leave to remain as his dependant.

On 22 November 2011 the Home Office served notice of a decision to make a deportation order. The appellant had earlier been served in prison with a notice of liability to deportation. Her response was to say that she was in love with Mr Bamidele and that theirs was a “stable and secure relationship”. The appellant appealed to the First-tier Tribunal against the decision to make a deportation order. She also made a fresh claim for asylum. In due course, the Home Office rejected the claim for asylum and human rights protection, but accepted that it amounted to a “fresh claim” for the purposes of paragraph 353 of the Immigration Rules (“the Rules”). That provides:

“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i)

had not already been considered; and

(ii)

taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”

The reason why the appellant needed to rely upon paragraph 353 was because she had made an earlier asylum and human rights claim which had been rejected on appeal. She advanced some of her earlier contentions again but the entirely new feature of the claim was that she was a lesbian and would be vulnerable to ill-treatment if returned to Nigeria.

The First-tier Tribunal allowed the appeal “to the extent that the appellant’s application be further considered …in the light of the new evidence.” That was in March 2012. Thereafter, the Home Office considered the fresh asylum claim and refused it on 12 June 2012. A new decision to deport was made on 28 June 2012. The appellant returned to the First-tier Tribunal to appeal against that decision. She claimed that:

The Home Office did not accept that the appellant was a lesbian, following a close examination of the claims made by the appellant, their inconsistencies, internal contradictions and contradictions with various statements and accounts she had given in the past. Reliance was placed upon her long history of criminal dishonesty, the previous false asylum claim and dishonest circumstances of her original arrival in the United Kingdom.

In an exceptionally detailed and careful determination dated 8 October 2012, the First-tier Tribunal (Judge Grimmett and Mrs Endersby) examined every piece of evidence produced by the appellant. They rejected in unequivocal terms the appellant’s claim to be a lesbian. Their conclusion was that she was lying once again to secure her place in the United Kingdom. In summary, the First-tier Tribunal considered that the claim was entirely false as was her suggestion she could not bear to be in a relationship with a man (para 92); she had created layer upon layer of deceit and lies (para 95); she had engaged in same sex encounters in prison as a fabrication; none of her lesbian relationships was genuine; she is not a lesbian and will not act as one on return to Nigeria (para 96); she has a history of deception (para 98); she has engaged in a series of dishonest and deceitful claims (para 100); she has shown a contempt for and abused immigration laws (para 112); she was inconsistent on crucial aspects of her claim that her first husband had been killed in Nigeria (para 68); her account of the circumstances of her daughter coming to the United Kingdom was incredible (para 70); other witnesses had been involved in fabricating evidence to support the claim (2^nd para 80, para 82); a woman she claimed to have been “engaged” to was herself found by the First-tier Tribunal in separate proceedings not to be a lesbian (para 41).

The claim to be entitled to remain in the United Kingdom on medical grounds was rejected, as was any claim based upon her daughter’s presence in the United Kingdom. Her daughter was to be returned to Nigeria with the appellant, although at the time of the appellate hearing her whereabouts were unknown to the Home Office.

On 17 October 2012 the appellant lodged a notice seeking permission to appeal against the decision of the First-tier Tribunal. The appellant suggested that the First-tier Tribunal had not given her case the anxious scrutiny it deserved and come to unsustainable conclusions on the factual issues. A few days later she appears to have withdrawn her appeal; she indicated that she wished to leave the United Kingdom. There is also a suggestion that the application for permission to appeal was refused. But by whatever procedure, the appeal process came to an end. Steps were then taken, with the appellant’s cooperation, to obtain an emergency travel document to enable her to return to Nigeria. She remained in custody. The whereabouts of the appellant’s daughter (who was never in custody) were still unknown to the Home Office. The plan had been to return both to Nigeria together. In late November 2012 the appellant indicated that her daughter had already returned to Nigeria, although whether that was true could not be confirmed. On 18 December the appellant said she wanted to return to Nigeria to join her daughter. The Deportation order was then drafted and signed on 3 January 2013. It was served upon the appellant on 8 January. That day removal directions were set for 24 January 2013.

No application was ever made for the deportation order to be set aside.

The immigration history and chronology with our papers suggest that on 31 December 2012 Public Interest Lawyers sent a pre-action protocol letter to the Home Office, which was responded to on 9 January 2013, but neither has been produced in these proceedings. We were told after the hearing that it concerned an allegation of unlawful detention.

The claim form in the judicial review proceedings was issued on 24 January 2013, a few hours before the claimant was due to be removed. The only decision challenged was that to set removal directions. In a hand-written claim form signed by the appellant personally, she asserted that she was unable to comply with the pre-action protocol because she did not have a solicitor. She made no mention of the involvement of her solicitors in writing a pre-action protocol letter a few weeks before, or the response received. There was no mention of the recent extensive history but she indicated that “other documents would be sent in later due to the high number of paperwork”. She sought an order quashing the removal directions. She also sought urgent interim relief. The basis of her claim was that she had long-standing mental health problems, had attempted suicide and was on suicide watch. If returned to Nigeria she would be unable to afford medication. She also suggested that she was being unlawfully detained.

Whilst the exiguous nature of the information in the claim form makes it difficult to pin down precisely what legal complaint was being made, the thrust of the claim seemed to be that removal to Nigeria would breach the appellant’s rights under articles 3 and 8 of the European Convention on Human Rights (despite the First-tier Tribunal having rejected that claim only weeks before). Mr Chelvan submitted on behalf of the appellant that it was in fact a claim that the Home Office was in breach of its policy which prevents the removal of individuals who are unfit to travel. The removal directions were unlawful because of the breach of that policy.

That same afternoon Foskett J ordered that the appellant should not be removed from the United Kingdom for 28 days to enable the medical position to be explored. He noted that the information he had was incomplete but that he had spoken to the Operational Support and Certification Unit in the Home Office (as is usual in such urgent cases) which had indicated that there was much recent material relating to the appellant which was relevant but had not been placed before the court. He directed the Home Office to lodge a written document within 14 days responding to the claim as then formulated. He envisaged that the appellant might respond within seven days to that and directed that the papers should go back before a judge before the 28 days had expired to consider the matter further. The appellant was released from immigration detention.

The Home Office responded as directed dealing with the medical case being advanced, suggesting it had no merit and inviting the court to refuse permission. The appellant did not reply to that document and the papers did not go back before a judge as Foskett J had ordered. That was most unfortunate and resulted in the litigation stalling through inertia for a year. On 6 March 2013 the appellant sought an extension of time to file additional medical evidence, it would seem intending to do as Foskett J had suggested, but nothing happened. The papers were placed before HH Judge Coe QC, sitting as a deputy High Court Judge, a year later on 10 March 2014. Judge Coe noted the unsatisfactory state of affairs and directed that unless within 28 days of the date of sealing of the order the appellant filed updating medical evidence, permission to apply for judicial review would be refused. The order was sealed on 18 March. If such evidence were filed, then the papers should go before a judge for permission to be decided.

Once more, things did not proceed as they should have done. On 14 April 2014 the appellant filed a bundle of materials extending to 460 pages which, save for a single medical report and a handful of supporting documents, was said to support the proposition that she was a lesbian and had become involved publicly in support for lesbian, gay, bi-sexual and transgender campaigning in the United Kingdom. The application notice asked the court “to accept the claimant’s additional evidence as it substantiates the claimant’s claim and no prejudice is caused to the defendant”. It did no such thing. The judicial review claim was not concerned at all with the claimant’s claimed homosexuality. This evidence was irrelevant to such issues as could be divined from the home-made claim form. The application notice additionally asked for “an extension of time to submit additional documents of a sexual nature”. This was a coy reference to further photographs which were to supplement two DVDs of the appellant engaged in lesbian sexual activity which she sought to rely upon in support of her claim to be a lesbian. In due course she did indeed rely on this material (happily not placed before us) and also on much else that post-dates this notice of application.

On 22 May 2014 the papers were placed before Robin Purchas QC sitting as a deputy High Court Judge. He granted permission to apply for judicial review of the removal directions and also granted permission for the appellant to rely upon the material going to her sexuality. He also ordered that she should file “updated grounds” which appears to have been a general liberty to the appellant to amend her grounds of claim. Updated grounds dated 4 June 2014 were filed and signed by counsel, I should make clear not Mr Chelvan, but which did not amend the original claim form. It referred to the “original judicial review” application and then to bundles of material in support of what was said to be the “outline position”, namely whether “the claimant is part of a particular social group, namely that she is a lesbian.” Thus the updated grounds were premised upon the proposition that the task of the court in the judicial review proceedings was to decide whether the appellant was, or was not, a lesbian. The argument based upon the appellant’s mental condition was maintained. The relief sought was a declaration that the appellant was a refugee or entitled to humanitarian protection. No new decision of the Home Office was identified in that document as being the subject of challenge. That is not surprising because there had been no new decision.

On 17 April 2014 the appellant’s then solicitors had sent the notice of application to adduce the additional evidence to the Treasury Solicitor. After a reference to the sexually explicit material the solicitors said:

“We shall be grateful if you are able to consider the claimant’s bundle of documents and confirm whether your client now accepts the claimant’s sexuality.”

What the appellant’s solicitors should have asked was that the material be considered under paragraph 353 of the Immigration Rules.

The Home Office did not respond to the invitation. In its detailed grounds of resistance the Home Office identified the decision under challenge as being the removal directions. Those detailed grounds noted that there was no challenge in these proceedings to the decision to refuse the appellant’s asylum claim in 2012. They noted that the decision of the First-tier Tribunal was not the subject of the challenge either and that it had followed a full hearing at which the appellant and others had given evidence. The grounds continued:

“5.

The defendant made her decision to remove the Claimant from the United Kingdom after the Claimant’s withdrawal of her appeal and in the light of the FTT’s decision.

6.

In the light of the above the Defendant will submit that the Claimant may not in these Judicial Review proceedings challenge the decision of the FTT or its findings of fact.”

Having stated this primary position, the detailed grounds then engaged with the claim as apparently being advanced by the appellant, namely that it was a matter for the High Court to make a primary decision about whether she was a lesbian and go on to decide, in the light of that decision, whether she would be at material risk on return to Nigeria and declare her entitlement to asylum. I note that by the time the case came on for hearing the appellant had introduced yet more material (although there is no sign of an application to do so) which was designed to support her claim that her campaigning activities in the United Kingdom would place her at risk whether or not she was in fact a lesbian. The Home Office did not adduce any evidence in the judicial review proceedings, save for an updated medical report. In its pleadings it contested the proposition that the material led to the conclusion for which the appellant contended.

It was in these circumstances that the matter came on for hearing before the deputy judge. The appellant was proceeding for all the world as if the judicial review proceedings were an appeal against a refusal of asylum to the First-tier Tribunal, when no such decision had been made on the material relied upon, but without the benefit of oral evidence or cross-examination.

The deputy judge noted in paragraphs 4 and 5 of his judgment that the decision under challenge was that of 8 January 2013 to set removal directions but that the claim now included a “Human Rights challenge against removal (and a claim to refugee status)”. It was said on the appellant’s behalf that “the nature of the evidence was overwhelming and ought to have led to the claimant’s claim succeeding on Asylum/Article 3 grounds and that the deportation order ought thus to be overturned.” That argument was being advanced despite there being no challenge to the deportation order in these proceedings. Furthermore, the deputy judge noted another argument and his response:

“the evidence since the Tribunal’s determination was such as to amount to further material for the purposes of there being a fresh claim under the relevant Immigration Rule Paragraph 353. I have reservations as to whether this is clearly pleaded in the Updated Grounds…”

This reference to paragraph 353 did not arise from any mention of it in the pleadings or skeleton arguments. Indeed, there was no mention of it in oral argument before the deputy judge. After the conclusion of argument the deputy judge later asked for clarification of both parties’ cases. Among the points raised by the deputy judge in email exchanges was a question of the appellant’s then counsel: “if you rely on the fresh representation route please identify which of the Immigration Rules you rely on.” Counsel’s response was in the terms quoted from the judgment above.

The deputy judge concluded that there was nothing legally wrong with the decision made by the Home Office on 8 January 2013. The Home Office had acted upon the First-tier Tribunal’s conclusions. It had available to it a psychiatric medical assessment on 7 January. He went on to consider the material before him for the purpose of determining the primary factual issues upon which the appellant sought an answer. He reviewed the evidence relating to the claimant’s sexuality and came to the same conclusion as had the First-tier Tribunal. He carefully considered all the medical material and similarly concluded that the claimant’s removal to Nigeria would not violate her rights. He dealt with the article 8 issues canvassed before him before returning to paragraph 353 of the Immigration Rules. The deputy judge concluded that the appellant was asking him to decide the question whether it would be unlawful to remove her on the basis of the information currently available as a primary decision maker, and not through a challenge to a decision made pursuant to paragraph 353. That said, he concluded that if the material were placed before a tribunal in an appeal there would be no realistic prospect of success.

The application for permission to appeal granted by the deputy judge related to 11 of 12 proposed grounds of appeal. Those were later refined by Mr Chelvan who abandoned four of them, recrafted those on which permission had been granted and unsuccessfully sought permission to pursue two new ones. In summary, the grounds before us emerged as follows:

The appellant issued an application on 8 July 2016 to adduce yet more evidence from supporters said to bolster her claim to be a lesbian. In my judgment the fresh evidence does not go to any issue that properly arises in this appeal. Similarly, the grounds which the appellant sought to add are not material to the issues that arise in this appeal.

The primary question whether the appellant was or was not a refugee and was or was not entitled to humanitarian protection was never before the High Court for decision in these proceedings. All grounds of appeal which are directed at that question are, with respect, nothing to the point. To the extent that the deputy judge was enticed along the path of deciding such matters by the parties, his conclusions were not necessary for the determination of the claim before him and were strictly obiter dicta. The conclusion of the deputy judge that the removal directions were lawfully set on 8 January 2013 has not been challenged in these appeal proceedings. For completeness I record that no attempt was made to challenge the conclusions he reached on the disputed medical issues. Before the deputy judge and before us the appellant’s purpose was to argue that the additional evidential material produced in the years since the removal directions were set should lead to the conclusion that it would today be unlawful to remove her to Nigeria.

The distribution of responsibility for decision making in asylum and human rights claims has been established by Parliament thought the medium of immigration legislation, including that which governs rights of appeal, together with the Immigration Rules which have been laid before Parliament. Within that distribution the function of primary decision maker is ascribed to the Secretary of State for the Home Department. Adverse asylum and human rights decision may, subject to a series of exceptions, be appealed to the independent Immigration and Asylum Tribunals (the First-tier Tribunal and Upper Tribunal). That distribution was reflected in the appellant’s case. Adverse asylum decisions were made by the Home Office on two occasions which she challenged unsuccessfully in appellate tribunal proceedings. The route of challenge from the First-tier Tribunal decision in October 2012 was to the Upper Tribunal, a route followed fleetingly but abandoned by the appellant before her judicial review claim. Where there is an appeal mechanism available judicial review may not be used as an alternative: see R (G) v Immigration Appeal Tribunal [2005] 1 WLR 1445; R (F) Mongolia v AIT [2007] 1 WLR 2523; and Ibrahim and Omer v Secretary of State for the Home Department [2010] EWHC 764 (Admin).

Mr Chelvan suggested that the detailed grounds served by the Home Office in this case, the effect of which I have summarised, amounted to a decision to reject the appellant’s renewed claim for asylum and humanitarian protection. That is an inaccurate understanding of the pleading which engaged with the issue identified by the appellant as an alternative to the proposition that the court should not entertain it. Furthermore, it is impossible to suggest that the pleading became the decision under challenge when the pleading was a response to the document (the updated grounds) which should have identified with clarity precisely what decision or decisions were being challenged in the proceedings.

From the outset, the underlying claim should been advanced through the medium of paragraph 353 of the Immigration Rules. However, the Home Office was never asked to consider the new material by reference to paragraph 353 and neither did it suggest that would have been the appropriate course. Paragraph 353 once more respects the distribution of decision making dictated by the statutory scheme. The premise is that an asylum or human rights claim has failed and the person concerned has exhausted available appeal rights. The Home Office is fully entitled to consider the fresh evidence and decide to grant asylum or humanitarian protection. If it does not do that it must decide whether, nonetheless, the fresh evidence amounts to a fresh claim as defined by the Immigration Rules. That requires an evaluation of whether the material is new and whether there is a realistic prospect of success before an appellate tribunal. If the Home Office accepts that there is a fresh claim the person concerned may then appeal the new adverse decision to the tribunal. That is what the appellant did after the rejection of her earlier fresh claim.

When the Home Office decides that there is no fresh claim that decision carries with it no right of appeal. Instead the aggrieved applicant may seek judicial review of that decision. The test to be applied on judicial review is laid down in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495; [2007] Imm App R 337. In such a claim the task of the court is to decide whether the Home Office decision is rational. The court is not called upon to judge the merits of the underlying claim. If the judicial review succeeds the Home Office is called upon to remake the decision. In reality the decision is reversed and the claimant secures a right of appeal to the tribunal where the facts can be tested properly.

In my judgment it follows that the only ground of appeal which could lead to success in this appeal is that which relates to paragraph 353. To get it off the ground the appellant would need to show that a decision was made pursuant to paragraph 353 rejecting the material as a fresh claim; that the decision was challenged in the judicial review proceedings and relief sought in respect of it. The argument fails at each level. There was no decision made pursuant to paragraph 353 of the Immigration Rules, which explains why no such decision was challenged in the judicial review proceedings. It explains why no relief conceivably relevant in a challenge to an adverse decision under paragraph 353 was sought in the judicial review claim. I have explained how paragraph 353 emerged post-hearing in the proceedings. The deputy judge was correct to conclude that no such claim was before him.

The underlying claim which has generated this appeal provides a troubling, but not unique, illustration of how proceedings in the Administrative Court can go badly awry when no discipline is exercised. It is sobering to reflect that Foskett J made an order on 24 January 2013 which made provision for steps to be taken which should have resulted in the matter being resolved, at least on paper, within 28 days. Instead we are hearing an appeal three and half years later which should never have got here. Public money has been wasted on both sides in this litigation and it has consumed substantial amounts of court resources.

It is commonplace for there to be last minute challenges to removal. Sometimes those challenges focus exclusively on an alleged error in the decision making process which has resulted in removal directions being set. But judges dealing with urgent applications in the Administrative Court (and those made out of hours) are routinely confronted with cases in which a claimant has exhausted all appeal mechanisms and presents what is said to be new evidence to support a claim already made or to make an entirely new one, in the light of which a stay of removal directions is sought on the grounds that it would be incompatible with ECHR rights or rights to humanitarian protection to execute removal. If there is a suggested fresh claim it must be identified and the court which is asked to stay the removal directions will have to consider whether the claimant has an arguable case that the new material is sufficient to constitute a fresh claim within paragraph 353. If there is an arguable case, it is likely to be appropriate to stay the removal directions until such time as the Home Office has considered that question and made a decision under paragraph 353. It was that which Foskett J had in mind when giving directions relating to the medical issue on which the appellant then relied. If a claimant is not satisfied because the Home Office decides that there is no fresh claim, he can seek to amend his judicial review claim to challenge that paragraph 353 decision and seek an extension of the stay on removal. If, on the other hand, the Home Office decision under paragraph 353 is that there is a fresh claim, but without accepting the substance of that claim, the claimant can appeal to the First-tier Tribunal. But in a departure from this procedure, this case wandered into the undergrowth of the facts, including on an issue which was not raised in the claim form, without anyone appreciating that it was not the function of the High Court to be treated as a surrogate First-tier Tribunal hearing an appeal from a decision to refuse asylum. That was all the more surprising given that such a decision had not even been made on the fresh material.

In the result the appeal, which in my judgment was never arguable at all, fell to be dismissed. The Home Office is still in the position of never having been asked to consider the appellant’s fresh material, including that which she sought to introduce into the appeal, under paragraph 353. We granted a stay on removal for 14 days to enable her to do that. It will be a matter for the Home Office to decide whether there is a fresh claim for the purposes of paragraph 353 and, if so, whether to grant asylum or humanitarian protection on the basis of it. If the answer to that first question were yes but the second were no, then the appellant would have a right of appeal to the First-tier Tribunal which is equipped by its procedures and expertise to decide disputed factual questions of the nature which arise in this case. If the answer to the first question is no, then the possibility of further judicial review arises. Mr Chelvan asked us to indicate that the Home Office should not take account of the deputy judge’s findings when considering her application under paragraph 353. That was not an issue before us and we heard no argument on it. In company with my Lords, I declined to express a view.

Those were also my reasons for dismissing the appeal.

And my reasons too.