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

This is a claim for judicial review. It relates to a decision of the Secretary of State to certify the claimant’s claim under one of the statutory certification provisions. The effect of the certification was to prevent the claimant’s claim from being considered on an appeal to an adjudicator. All references in this judgment to sections of an Act are references to sections of the Immigration and Asylum Act 1999 (“the 1999 Act”).

The claimant is an ethnic Albanian from Kosovo. He arrived in the UK on 12 December 1999 clandestinely in the back of a lorry, i.e. without presenting himself at the immigration control point at which the lorry arrived, and claimed asylum here the following day. On 16 October 2000 the Secretary of State refused his claim, and at the same time served the claimant with a one-stop notice as required by section 74(4). It will be necessary to return later to the effect of such a notice. The claimant appealed to an adjudicator, and by a determination promulgated on 22 January 2001, the adjudicator dismissed his appeal against the refusal of his claim for asylum, as well as his contention that the persecution which he feared on his return to Kosovo would amount to torture or to inhuman or degrading treatment or punishment from which he was protected by Art. 3 of the European Convention on Human Rights. The claimant did not seek to appeal to the Immigration Appeal Tribunal against the dismissal of his appeal, nor has he sought judicial review of the refusal of his claim for asylum or his claim under Art. 3.

By the time of his appeal to the adjudicator, the claimant had met Susan Lee, a British subject who is now his wife. At that stage, their relationship had lasted a year, but it was said that although they intended to marry, they had not done so because (a) it might look as if they had done so for immigration purposes and (b) they were reluctant to do so while the claimant’s future in the UK was uncertain. It was also said that she would not be able to accompany him if he had to return to Kosovo because her mother needs her care. It was on this basis that it was submitted to the adjudicator that the claimant’s removal to Kosovo would infringe his right to respect for his family life protected by Art. 8(1) of the European Convention on Human Rights.

The adjudicator did not doubt what he had been told about the claimant and Miss Lee’s affection for each other. He said: “Although she is twice the age of the [claimant] she impressed me as a youthful 43 year old who genuinely loves the [claimant].” It is what he went on to say which is important for present purposes. He said:

“62.…I am not at all sure their relationship can be described as a family. I accept that marriage is not essential to a family but their relationship is a long way from that.

63.

However whether this is a family or not one weighs their interest against the interest of the state to maintain a consistent immigration policy to serve both the economic well being of the country and law and order. The Strasbourg jurisprudence makes clear that the latter would generally prevail.

64.

I take the view that this is essentially a matter for the discretion of the Secretary of State. I do not believe that Article 8 would be breached if the Secretary of State declines to exercise that discretion in favour of the appellant.

65.

But the Secretary of State has not considered this aspect of the case. This couple have behaved entirely responsibly in not marrying at a stage where the appellant’s status is insecure and they are not in a financial position to marry. This should not prejudice them in comparison with those [who] are less responsible and do marry. I would hope the Secretary of State will reconsider this aspect of the case and consider whether exceptional leave to remain would not be appropriate.”

The adjudicator was not, of course, recommending that the claimant be granted exceptional leave to remain in the UK. He was simply expressing the hope that the Secretary of State would consider whether the claimant’s relationship with Miss Lee justified the grant of exceptional leave to remain.

The policy of the Secretary of State is to grant failed asylum-seekers exceptional leave to remain in the UK if they need protection under the European Convention on Human Rights or for compassionate or humanitarian reasons. Thus, on the strength of the adjudicator’s remarks the claimant’s solicitors wrote either to the Immigration Service Ports Directorate or to the Immigration and Nationality Directorate on 14 February 2001, 9 March 2001 and 20 March 2001 requesting that the claimant be given exceptional leave to remain in the UK. Not only was the claimant’s relationship with Miss Lee and her inability to accompany him to Kosovo relied upon, but so too was the fact that he had been diagnosed as suffering from post-traumatic stress disorder and depression as a result of his experiences in Kosovo, for which he could not receive specialist treatment in Kosovo, and the fact that the danger of depleted uranium made it unsafe for the claimant to return to Kosovo. His return to Kosovo in these circumstances would, so it was said, subject him to inhuman or degrading treatment within the meaning of Art. 3. These representations went unanswered.

On 22 January 2003, the claimant was arrested for shoplifting, though it is said that he was never charged. He was then detained pending his imminent removal from the UK, and on the following day directions for his removal on 30 January 2003 were issued. Since no response to the representations made on his behalf had been received, his solicitors wrote once again to the Immigration Service, repeating the representations which had been made. They enclosed a report from Dr William Hopkins, a consultant psychiatrist, who had examined the claimant on eight occasions. He confirmed the previous diagnosis, and expressed the view that if the claimant were returned to Kosovo, where only limited psychiatric treatment was available, there would be a marked deterioration in his mental state. Since a substantive response had still not been received by 30 January 2003, the claimant’s solicitors sought and obtained from Crane J. an order restraining the Secretary of State from effecting the claimant’s removal from the UK for the time being. The claim for judicial review which was then lodged on the claimant’s behalf related to the failure to consider the claimant’s long-outstanding request for exceptional leave to remain in the UK, and sought an order requiring the Secretary of State to provide a substantive response to that request.

After the claim for judicial review had been lodged, the claimant’s solicitors received a letter dated 30 January 2003 refusing the claimant’s request for exceptional leave to remain in the UK. Thus, the claim for judicial review had by then achieved its goal, which had been to force the Secretary of State to consider the claimant’s request for exceptional leave to remain in the UK. As it was, the Secretary of State’s letter made four points:

Finally, the letter claimed that the Secretary of State’s decision refusing the claimant exceptional leave to remain in the UK had not been a “decision under the Immigration Acts relating to [the claimant’s] entitlement to enter or remain in the United Kingdom” within the meaning of section 65(1), and that therefore the claimant’s right of appeal to an adjudicator under section 65(1) where such a decision was alleged to have infringed a person’s human rights had not been triggered. Section 65(1) provides, so far as is material:

“A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person’s entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision…..”

Following the service of the claim for judicial review, the Secretary of State wrote to the claimant’s solicitors again. That was on 7 February 2003. He noted that the claimant had previously been through “the one-stop appeal system”, which meant that the claimant had been “obliged …..to mention any and all of the grounds that he wished to rely on at appeal”. He took the view that “for the reason given above” (which can only have been a reference to “the one-stop appeal system”) the representations did “not constitute a fresh human rights or asylum claim”, and he “therefore” issued a certificate under section 73(8). Section 73 applied to the claimant’s case because, by section 73(1), it applies where a person has appealed under the 1999 Act and that appeal has been finally determined. Sections 73(7)-(9), so far as is material, provide:

“(7)

Subsection (8) applies if, on the application of the appellant, …..the Secretary of State makes a decision in relation to the appellant.

(8)

The ….. Secretary of State may certify that in his opinion–

(a)

one purpose of making the application was to delay the removal from the United Kingdom of the appellant or any member of his family; and

(b)

the appellant had no other legitimate purpose for making the application.

(9)

No appeal may be brought under ….. this Act against a decision on an application in respect of which a certificate has been issued under subsection (8).”

Thus, the effect of the Secretary of State issuing a certificate under section 73(8) was that, to the extent that the claimant had been entitled to appeal to an adjudicator against the decision refusing him exceptional leave to remain, he could no longer do so. In the light of these events, it was necessary for the claim for judicial review to be amended, and in due course Wall J. gave the claimant permission to proceed with his claim for judicial review of the Secretary of State’s decision to issue a certificate under section 73(8). The lawfulness of that decision is now the only issue which this claim for judicial review raises.

One important event has occurred since the filing of the claim for judicial review. The claimant and Miss Lee have now married, maybe because of the adjudicator’s doubt that their relationship as it had been could be described as “a family”. By marrying, and on the assumption that on any appeal which they are permitted to bring on the basis of Art. 8(1) it is not alleged that their marriage is a sham, the issue on any appeal will be whether the interference with their family life which will inevitably occur if the claimant is removed to Kosovo and his wife cannot join him there while she continues to look after her mother can be justified under Art. 8(2) of the European Convention on Human Rights.

The reference to the “one-stop appeal system” in the Secretary of State’s letter of 7 February 2003 is a reference to the “one-stop” procedure set out in sections 74-78, which in effect requires a person who has been refused leave to remain in the UK to notify the Secretary of State of any additional grounds which he may have for wishing to remain in the UK, so that any appeal against the refusal can address any such additional grounds as well. Not only had the claimant not advanced to the adjudicator his claim that his removal to Kosovo would result in him being subjected to “inhuman and degrading treatment” within the meaning of Art. 3 on the basis of the danger of exposure to depleted uranium or the unavailability of treatment in Kosovo for his damaged mental health, but he had not notified the Secretary of State of that either. The danger of the claimant’s exposure to depleted uranium can now be ignored because it is no longer suggested that that possibility amounts to “inhuman or degrading treatment”. But the reason given (in the claimant’s solicitors’ letter of 20 March 2001) for why his damaged mental health had not been relied upon earlier was that it was only on 31 January 2001 (9 days after the dismissal of his appeal) that he had been allocated to the medical practice at which his condition was subsequently diagnosed.

The grant of exceptional leave to remain in the UK on compassionate grounds is not governed by the Immigration Rules. It is a decision taken in the exercise of the Secretary of State’s discretion outside the scope of the Immigration Rules. There is no right of appeal from such a decision where the grounds relied on are compassionate grounds alone. Section 65(1) only affords a right of appeal from such a decision where it is alleged that the decision to refuse exceptional leave to remain infringed the claimant’s human rights. Any challenge to the decision on compassionate grounds alone has to be made by way of judicial review, and no such challenge had been mounted in the present case.

So far, so good. But the argument deployed by Mr Daniel Beard for the Secretary of State was that the issue of the certificate under section 73(8) has to be seen in that context. The certificate related to the claimant’s purpose for requesting exceptional leave to remain in the UK. The Secretary of State only issued the certificate in respect of the human rights grounds on which the claimant was requesting exceptional leave to remain. In other words, the question which section 73(8) posed for the Secretary of State was whether

I am unable to accept the premise on which this ingenious argument is founded. The certificate was not issued by the Secretary of State in respect of the human rights grounds on which the claimant was requesting exceptional leave to remain. The certificate was issued by the Secretary of State because he thought that the claimant had not complied with the requirements of the one-stop procedure: see para. 9 above. That was not quite correct. The claimant’s solicitors’ letter of 4 January 2001 had informed the Secretary of State about the claimant’s relationship with Miss Lee. It had stated that their relationship could not continue if the claimant was removed to Kosovo (even though the Secretary of State was not informed that that was because Miss Lee had to look after her mother). And it had claimed that the claimant’s removal to Kosovo in these circumstances infringed his right to respect for his family life protected by Art. 8(1). Indeed, the only relevant respect in which it could have been said that the claimant had not complied with the one-stop procedure was in relation to the claim under Art. 3 based on the unavailability of treatment in Kosovo for his damaged mental health.

Moreover, I do not believe that the Secretary of State’s power to issue a certificate under section 73(8) was intended to apply to those cases in which the Secretary of State thought that an appellant’s failure to comply with the one-stop procedure should prevent the appellant from pursuing a further appeal to the adjudicator. There are other statutory limitations on an appellant’s right of appeal which were intended to cover just that situation. Thus, sections 73(2)-(3) provide, so far as is material:

“(2)

If the appellant serves a notice of appeal making a claim that ….. a decision of a decision-maker was in breach of the appellant’s human rights, the Secretary of State may certify that in his opinion –

(a)

the appellant’s claim–

(i)

could reasonably have been included in a statement required from him under section 74 but was not so included, or

(ii)

could reasonably have been made in the original appeal but was not so made;

(b)

one purpose of such a claim would be to delay the removal from the United Kingdom of the appellant or any member of his family; and

(c)

the appellant had no other legitimate purpose for making the claim.

(3)

On the issuing of a certificate by the Secretary of State under subsection (2), the appeal, so far as relating to that claim, is to be treated as finally determined.”

And sections 73(4)-(6) provide:

“(4)

Subsection (5) applies if a notice under section 74 was served on the appellant before the determination of his original appeal and the appellant has served a further notice of appeal.

(5)

The Secretary of State may certify that grounds contained in the notice of appeal were considered in the original appeal.

(6)

On the issuing of the certificate by the Secretary of State under subsection (5), the appeal, so far as relating to those grounds, is to be treated as finally determined.”

So if the Secretary of State thought that the claimant should not be permitted to appeal because the ground on which he wished to rely should have been raised in the original appeal but had not been, viz. the claim under Art. 3 based on the unavailability of treatment in Kosovo for his damaged mental health, the statutory scheme contemplated that the Secretary of State should have issued a certificate under section 73(2) once the claimant had served a notice of appeal making that claim. And if the Secretary of State thought that the claimant should not be permitted to appeal because the ground on which he wished to rely had already been decided in an earlier appeal, viz. the claim under Art. 8 based on the inability of Miss Lee to accompany the claimant to Kosovo, the statutory scheme contemplated that the Secretary of State should have issued a certificate under section 73(5) once the claimant had served a notice of appeal making that claim.

But whether or not the claimant had failed to comply with the one-stop procedure, the question still remains whether the Secretary of State could rationally have held the opinion which he has to have held if he was to issue a certificate under section 73(8). The word “delay” in section 73(8)(a) rather suggests that the Secretary of State’s power to issue a certificate under section 73(8) is triggered when the appellant is seeking to put off what will happen in due course in any event. It is possible, therefore, that section 73(8) was intended to apply to situations where the appellant is trying to buy time in the UK before he has to bow to the inevitable and submit to his removal from the UK. I reach no conclusion on this argument, but what can be said is that this was not a case in which the claimant’s request for exceptional leave to remain in the UK was made only for the purpose of putting off his inevitable removal from the UK to a later date. One of the purposes of the request was for the Secretary of State to consider (a) what the adjudicator had hoped the Secretary of State would consider, namely “whether exceptional leave to remain would not be appropriate” in the light of the claimant’s relationship with Miss Lee, and (b) what no-one had yet considered, namely whether treatment for the claimant’s damaged mental health would be available in Kosovo. It was, I think, not open to the Secretary of State to have concluded otherwise. Thus, the crucial question is whether it was open to the Secretary of State to conclude that such a purpose was not a legitimate one.

Whether a purpose is a legitimate one within the meaning of section 73(8) was considered by Burton J. in R (on the application of Vemenac) v. Secretary of State for the Home Department [2002] EWHC 1636 (Admin). He said at [20] that a purpose is not a legitimate one if “the case put forward was so hopeless that it was not properly arguable”. When commenting on that decision in R (on the application of Balamurali) v. Secretary of State for the Home Department [2003] EWHC 1183 (Admin), Mitting J. said at [13]:

“I am told ….. that although Burton J. did not record that that view was the agreed view of counsel, the skeleton arguments disclosed that counsel for the Secretary of State did not dissent from that proposition.”

This view of the meaning of “legitimate” was followed by Davis J. in R (on the application of Soylemez) v. Secretary of State for the Home Department [2003] EWHC 1056 (Admin) at [15]. Davis J. did so only because of a concession by counsel on behalf of the Secretary of State that Burton J.’s approach should be followed in that case. But Davis J. thought that if the legitimacy of the purpose was to depend on the merits of the application, he would have expected the Secretary of State’s power to certify to be triggered, for example, if he thought that the application was “manifestly unfounded”, which is the language of section 72(2)(a).

A different view was taken by Mitting J. in Balamurali, but it is critical to an understanding of his approach to appreciate that he was considering the meaning of “no other legitimate purpose” in section 73(2)(c) rather than in section 73(8)(b). He noted what Ouseley J. had said in R (on the application of Ngamguem) v. Secretary of State for the Home Department [2002] EWHC 1550 (Admin) at [46]:

“In order for there to be a legitimate purpose there has to be some new material of substance placed before the Secretary of State which goes beyond what has been presented to the Special Adjudicator and it is for the Secretary of State to consider whether it does or does not have any weight. If he considers that it does not, the conclusion follows that he is entitled to certify the claim as one made for the purposes of delay with no other legitimate purpose.”

He also noted what Burton J. and Davis J. had said in Vemenac and Solyemez. But he concluded at [15]-[18]:

“15.

‘Legitimate purpose’ seems to me to focus on the purpose for which the claimant makes his claim, not on its soundness nor on the prior availability or lack of availability of material relied on for the first time in his new appeal. Other phrases could easily have suggested either proposition: in section 72 of the 1999 Act the phrase ‘manifestly unfounded’, deals with hopeless claims. In section 73(2)(a)(ii) itself, the availability or lack of availability of material is explicitly addressed. I have struggled to discern what the draftsman might have had in mind.

16.

[Counsel for the Secretary of State], on instructions, submitted first that what was meant was ‘a good reason why he did not include the claim in his earlier appeal’ but, as I observed, that is already dealt with in section 73(2)(a)(ii), and the words of subsection (2)(c) are not apt to describe that situation. In the end, [counsel] submitted that the words were there to accommodate situations not foreseen by the draftsman as a long-stop against potential injustice. On the submissions that I have heard that seems to me to be the only acceptable construction of that phrase.

17.

[Counsel for the claimants’] propositions as to the meaning of the phrase [namely, that a legitimate purpose must be, first, to remain in the United Kingdom and, secondly, to pursue an appeal which is not hopeless] would, if correct, frustrate the manifest purpose of section 73, which is to produce finality. I am unable to accept that the draftsman had those factors in mind when choosing that phrase. The purpose of section 73 is to require the claimants to bring all claims in one appeal, and to achieve finality in determination of that single appeal. Again, if a common law analogy is permitted, the analogy is with issue estoppel as expanded by the rule in Henderson v. Henderson (1843) 3 Hare Reports 100.

18.

It seems to me, therefore, that if the Secretary of State is satisfied that the appellant’s claim, in the sense that I have indicated, could reasonably have been made in the original appeal but was not, and that one purpose of such a claim would be to delay removal from the UK, then, save in unusual circumstances in which the claimant had another legitimate purpose, the Secretary of State is entitled to go on to consider whether or not to issue the certificate.”

I do not comment on the correctness of Mitting J.’s view on the meaning of “no other legitimate purpose” in section 73(2)(c), though when he said that the purpose of section 73 was to require claimants to bring all claims within one appeal, I would have said that that was the purpose of sections 74-78, and that the purpose of sections 73(1)-(6) was to provide an effective sanction for the failure to comply with that procedure. I would exempt sections 73(7)-(9) from that, because section 73(7)-(9) apply whether or not the one-stop procedure has been invoked by the service of a notice under section 74.

But I do not need to reach a conclusion on what makes a purpose “legitimate” within the meaning of section 73(8), because the claimant’s purpose for making the request for exceptional leave to remain was legitimate on any view. To the extent that he wanted the Secretary of State to consider whether he should be granted exceptional leave to remain in the light of his relationship with Miss Lee, he was doing no more than asking the Secretary of State to consider what the adjudicator had hoped that the Secretary of State would consider. To the extent that he wanted the Secretary of State to consider whether he should be granted exceptional leave to remain in the light of the unavailability of treatment in Kosovo for his damaged mental health, he was doing no more than asking the Secretary of State to consider that which the Secretary of State had not considered before. If the Secretary of State was going to hold against the claimant the fact that the claimant had not asked the adjudicator to address that issue in the original appeal, the Secretary of State should have given the claimant’s solicitors – in the two years or so in which their representations went unanswered – an opportunity of explaining why the claim had not been raised then. No doubt the claimant’s solicitors would then have told the Secretary of State what they told him in their letter of 20 March 2003, and if the Secretary of State did not regard that as an adequate explanation he could have said so. The fact is that the claimant’s solicitors were not given an opportunity to deal with that.

It follows that the certificate which the Secretary of State issued under section 73(8) must be quashed. That means that section 73(9) does not apply, and the claimant may bring an appeal under section 65(1) against the Secretary of State’s decision not to grant the claimant exceptional leave to remain in the UK, provided that the grounds relied on are that in reaching that decision the Secretary of State acted in breach of the claimant’s human rights.

However, this may turn out to be a pyrrhic victory for the claimant. If the claimant serves a notice of appeal, it would be open to the Secretary of State

The claimant’s case is that his claim that his removal to Kosovo would infringe his right to respect for his family life protected by Art. 8(1) had not been considered by the adjudicator. In paras. 62-65 of his determination, the adjudicator was doing no more than noting that the Secretary of State had not considered the claimant’s relationship with Miss Lee, and expressing the hope that the Secretary of State would in due course consider it. It may be that when he did so, the Secretary of State would conclude that the claimant’s removal to Kosovo would not infringe Art. 8, but that was a matter for the Secretary of State to consider.

Although this is a tenable reading of paras. 62-65, I do not think that it is the correct one. As Ouseley J. said in R (on the application of Nyakonya) v. Immigration Appeal Tribunal [2002] EWHC 1544 (Admin) at [28]:

“…..the Adjudicator has jurisdiction to consider any question which arises on an appeal as to whether the Secretary of State’s decision would breach an appellant’s human rights ….. jurisdiction is conferred in very wide terms and an appeal can be allowed if the authority concerned has acted in breach of the appellant’s human rights. There is no statutory provision which requires the Secretary of State to have considered the claim first in order to found the jurisdiction of the Adjudicator.”

If the position was otherwise, the provisions in the 1999 Act relating to the “one-stop” procedure would be unworkable. Moreover, the claimant’s case as to how paras. 62-65 are to be read do not give effect to para. 63 and to the second sentence of para. 64. In those sentences, the adjudicator was expressing his view that even if the relationship between the claimant and Miss Lee constituted family life, the claimant’s removal to Kosovo would not infringe his right to respect for his family life protected by Art. 8(1), because the need to maintain a consistent immigration policy justified an interference with that right under Art. 8(2). What was the adjudicator doing in these two sentences if he was not expressing his own view on that issue? Thus, what the adjudicator was doing in para. 65 was expressing the hope that the Secretary of State would consider whether sufficient compassionate grounds existed to justify the grant of exceptional leave to the claimant to remain in the UK in order to remain with Miss Lee. The adjudicator could not have been expressing the hope that the Secretary of State would consider whether the claimant’s removal to Kosovo would infringe his rights under Art. 8(1), because that issue had already been addressed by the adjudicator. It follows that, in my opinion, the Art. 8 grounds on which the claimant wishes to rely on any future appeal to an adjudicator have already been decided adversely to the claimant by the adjudicator on the original appeal. If that view is correct, it would not be possible for the claimant to challenge a certificate issued by the Secretary of State under section 73(5) on those grounds.

Finally, I regret the lapse of time between the date of the hearing and the handing down of the judgment. A transcript of the judgment in Balamurali was not available when the hearing took place, and the parties did not think it right for me to decide the case until it had become available and until I had the parties’ representations on it. They did not arrive for a good few weeks.