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

MR JUSTICE CRANE: This is the oral hearing of an application for permission to apply for judicial review, in circumstances where the substantive hearing was ordered to follow in the event of permission being granted.

The matter comes before the court in this way. The claimant is an Iranian national who attended Lunar House in London on 27th June 2003. She claimed asylum, stating that she had arrived in the United Kingdom on 19th June 2003 by air, entering as a visitor at Heathrow Airport. She was accompanied by her adult son, who is a British citizen. I pause to say that, as I understand it, the son was born in the United Kingdom, after his parents where on a visit here, but has not, at any rate for any significant period, lived in the United Kingdom since his infancy.

On 27th June the claimant also sought support under the National Asylum Support Scheme, and she was provided with accommodation whilst her claim for support was determined. In due course she was interviewed. By a letter dated 1st July the defendant notified the claimant that she was not entitled to support. The decision was that in the first place she had not made her asylum claim as soon as reasonably practicable after arrival in the United Kingdom, and secondly that, in that situation, the Secretary of State was not satisfied on human rights grounds that there were any circumstances in her case which would have exempted her from the provisions of section 55 of the 2002 Act.

On 4th August the claimant was informed that she would not be provided with further accommodation at the hotel where she was being accommodated after 8th August. On that date her solicitors applied to the court for interim relief. Richards J considered the papers on that date and adjourned the application to an oral hearing on notice in the week beginning 11th August. On 11th August the claimant made a further application for interim relief which was refused, as indeed Richards J had refused it. On 12th August a further application was made to the court. The claimant obtained an order for the provision of interim accommodation until the hearing actually took place on 14th August. Although, since 14th August, there appears to have been no order for interim relief in place, the interim relief has been continuing because of the present proceedings.

On 14th August Stanley Burnton J heard submissions but adjourned the matter to the following day to permit the claimant to file further evidence, and he gave directions to that effect. Further statements were lodged. On 15th August the matter came back to court. It was adjourned until 12.30 p.m. for further time for the claimant to address information, by then available, about the screening interviews. Following further submissions, Stanley Burnton J refused permission in relation to section 55(1) of the 2002 Act. He adjourned the question of section 55(5) to be dealt with, as has in fact occurred, before me. He gave the claimant permission to file further evidence and directed skeleton arguments; further evidence and skeleton arguments have been filled.

Section 55 provides as follows. Subsection (1):

However, passing over the provision relating to the various kinds of support, to which it is not necessary to refer in detail, subsection (5) reads as follows:

The claimant relies on both Article 3 and Article 8, but her counsel concedes that if she does not succeed on the basis of Article 3, she cannot succeed on the basis of Article 8. In these circumstances, although there is plainly a basis for arguing that there is a family life involving the claimant and her son, it is perfectly sensible to concede that the nature of the present application means that she must demonstrate a case on the basis of Article 3.

Returning to the earlier history, I note that the claimant under went two interviews on 27th June 2003, Screening Form Level I, and 1st July 2003, Screening Level II. It is the second of those which is relevant for the purposes of accommodation. I deal with the paragraphs in that interview (which is a structured interview with questions set out). Insofar as they deal with the question of accommodation:

According to a note on a supplementary sheet, she was asked:

It is right to note that at the commencement of the interview there are passages to be read to the applicant. It is recorded that she said she understood. She was recorded as being fit and well to be interviewed, although she said she had a headache, which was recorded. She was asked if she was content to be interviewed in Farsi, and she said "yes". She signed apparently to say that she understood those matters, and at the end of the interview, subject to the supplementary questions I have mentioned being on a separate sheet, she signed, under the rubric:

I have read the statement, which in my bundle is not signed, but I am not concerned with that, from Judith McCarthy, a member of the claimant's solicitors firm about interviews in general. I do not think it would be right to comment extensively on interviewing practice since the defendant has had no opportunity to respond. However, it is obvious that great care must be taken to ensure, as far as humanly possible, that an interview conducted through an interpreter does not disadvantage a claimant by the barrier of language. It must be borne in mind that an interview with prepared questions, which in itself is a useful method, may not result in a clear and chronological account if the person interviewing has difficulties in recalling precise dates. It must also be noted that the signature that appears, particularly the one at the end of the interview, is in itself of very little significance. It is not suggested that the interview was read through to the applicant, and her signature under the words "I certify that the above details are fully understood and are correct" really does not advance the matter at all. That, I think, is accepted by Miss Giovannetti on behalf of the defendant. Unless it is read through, the claimant has no reason to know what has been written, or indeed whether matters have been correctly translated. The signature on the document records that she is present, and presumably accepts that she has been interviewed, but no more than that. That does not necessarily mean of course that the Secretary of State is not entitled to rely on the content of the interview, but he will, in those circumstances, inevitably be relying on the accuracy of the screening officer.

On the same day as that second interview, the Secretary of State made his initial decision in a letter bearing that date. Having dealt with the question of when asylum had been claimed, he proceeded to deal with the question of support in these terms:

Criticisms are made of the interview (apart from the ones that I have mentioned) that there was insufficient probing and that the claimant was not given the opportunity that she should have been given to clarify matters or refute the suggestion that was going to be made that her account was not credible.

There is some force in that criticism, but it is to be noted that it was not so much, judging by the letter, that she was disbelieved in the actual things that she said. The Secretary of State was rather, in fact, not satisfied that in all the circumstances that she was "destitute." In my judgment, despite features of the interview which were not wholly satisfactory, the defendant was not acting unreasonably in reaching the conclusions that he did on the basis of the interview.

Quite apart from the credibility point, there was, in effect, a finding in the letter that the claimant could live with her son. On the information in the interview, the Secretary of State was entitled in my view to conclude that. In fact, it is now conceded in court, partly in the light of further evidence that has been filed, that the reference to a house and to it being the son's house is unrealistic and has to be treated with some caution. The premises concerned at 43 Wood Lane appear to have been, and it is not seriously now disputed, either a hotel in the traditional sense, or at least a building in which rooms are rented out. It was not in any sense the son having a house, and it was certainly not the son's house. There may well have been a measure of misunderstanding on 1st July. That is not to say that the Secretary of State was wrong to reach the conclusion that he did on the basis of the information that he had then, including the interview.

I am invited by both parties to decide whether, whatever the position about the original decision, the Secretary of State's continued maintenance of his refusal to provide support, is sustainable in law in the light of the various further information.

The need to reach that conclusion is not wholly satisfactory for two reasons. In the first place there is no decision letter which I can examine to see how the Secretary of State has reached that conclusion. The Secretary of State's position has been very ably and fully expressed to me through counsel's submissions, but Mr Jacobs rightly points out that there is no further decision letter. I shall return to that point. The second way which the task I am performing is somewhat unsatisfactory, is that the Court of Appeal will next week be hearing an appeal in the S, D and T case, and I have given anxious consideration to whether I should in fact decide the case prior to the judgment in that appeal.

I have reached the conclusion, in view of the history of the case, and the specific adjournment of the case in the way I have described, that I ought to grasp the nettle and decide the matter today on the law as it appears to stand. Mr Jacobs invites me to consider, among other things, whether I should order a further interview rather than either simply allow or dismiss the application. I shall, therefore, in fact decide the case.

Before I proceed further, I should indicate that I am going to grant permission in this case. That is a separate decision from my ultimate decision, but in my view there are sufficient difficulties in this case for me to confirm that I am granting permission in relation to the section 55(5) point. It is important in the future, if I ultimately refuse relief to the claimant, that it is not suggested that the matter failed at the permission stage.

The test I have to apply involves a consideration of two authorities. First of all in the Court of Appeal in R (On the Application of O and Others) v Secretary of State for the Home Department [2003] EWCA Civ 364, the Court of Appeal held as follows:

The case of Pretty v United Kingdom, referred to by Maurice Kay J, was decided by the European Court of Human Rights on 29th April 2002. The test, therefore, is whether, if asylum support is not provided, the claimant will be reduced to destitution. There is plainly a high threshold for Article 3 in this respect and as the practice in S, D and T indicates the practical question is likely to be whether the claimant will be "street homeless." That is in relation to somebody of the claimant's background and age an anxious consideration for the court and, no doubt, for the Secretary of State.

I now have a series of statements from the claimant, and a statement from her son, Mr Kaveh Mohseni Boroujerdi. There is also a series of letters and statements provided as a result of urgent and diligent enquiries by the claimant's solicitors. Miss Giovannetti for the defendant points out that the threshold is a high one. She does not suggest for the purpose of this case that I should decide that street homelessness is not established simply because it has not actually happened. But she submits that there has been now some opportunity for the claimant's case to be fully put forward with advice and assistance from solicitors and counsel.

She submits that there is a series of unsatisfactory features and gaps in the evidence, even now. She highlights five matters. First of all she points out that there remain some discrepancies over dates in the accounts given by the claimant and her son. I pause to say that the discrepancies cannot be regarded, once one looks at the whole picture, as wholly inconsistent in themselves with difficulties of remembering dates. She points secondly to the fact that at paragraph 2.114 and 2.115 of the interview there is mention of an Iranian found at the airport who, it appears, directed the claimant to her solicitors. How she came across that person and how he came to help her is not explained. Thirdly, she points out that although there has now been filed a short statement from the Iranian lady who provided accommodation, two separate names have been provided for that person and still no precise address. Fourthly, in relation to the gentleman, Mr Irfani, with whom the son apparently stayed for some days, there appeared to be two different addresses given, one by Mr Irfani and the other by the son when he refers to Mr Irfani. Fifthly, she points out that the son was able to find accommodation with Mrs Mehraver, who has written a letter to the court dated 19th August, but there is no explanation, submits counsel, of how this person was contacted.

Miss Giovannetti submits that destitution would only arise in the last resort if assistance through or by acquaintances, friends, contacts or charities are not available. She submits that in the absence of a full explanation of how the various contacts were made and what other contacts there might be, the defendant remains entitled to conclude that the claimant is not destitute in the sense of S, D and T.

Mr Jacobs, however, submits that all the questions asked by the defendant and those raised by Stanley Burnton J have been addressed. He submits that any further questions that need to be answered could be answered if that were necessary. But I must point out that there has been a full opportunity now in these proceedings, admittedly with some urgency, to investigate and to provide the necessary chapter and verse. I accept that there had been approaches to some charities and organisations which have not been able to provide accommodation.

I have reached the conclusion, not without initial hesitation, that the defendant is entitled to continue to have concerns about whether the full picture has emerged and whether all avenues of support have been closed. If one stands back in this case, the broad picture, even on the claimant's case, is reasonably clear in this way. The claimant has the support and assistance, insofar as he is able to give it, of her adult son, although I understand and sympathise with her wish not to share accommodation with other men. She has in fact shared accommodation with her son, and a desire for independence from the son is not a relevant factor in the present context, however understandable. Apart from the period when money was available, the claimant has, for part of the time, been able to obtain temporary accommodation, and there had been times at least when the son has been able to do so for himself. It is unclear to me whether the son has ever actually slept rough, but I am prepared to proceed on the basis that at least for one night he probably has done so.

The son is, subject to I think temporary difficulty with toothache, in a position to work and is seeking work. He has applied for job seekers allowance which, at some stage unknown, he will receive. He says that he has been able to borrow small sums. One of the churches attended by the claimant has generously provided some food and clothing. It is reasonably clear that the claimant and her son do have some contacts and some acquaintances, notably among Iranians living in this country.

I, therefore, conclude that the defendant is entitled, for the reasons given Miss Giovannetti, and looking at the matter generally, to conclude that the claimant has not made out a case for support in the light of the considerations that arise under section 55(5), and while I agree that it is, in a sense, unsatisfactory that there has been no further decision, in the light of the information before me, I see no useful purpose today in requiring a further interview or reconsideration. There has been a full opportunity to provide further information, and in the light of all the further information that has been provided the refusal has not been shown to be irrational and hence unlawful.

For those reasons, I shall grant permission and in fact refuse relief and dismiss the application. I do point out that it is clear on the authorities that the situation in relation to destitution may change, and if the situation does change the Secretary of State may need to reconsider the position. In other words, any decision the court makes in the present context is not a decision beyond the situation today. If the situation were to change, there would be a need to reconsider in appropriate circumstances.

I should also add that decisions to refuse a remedy in the present kind of context, of a person of the claimant's age and background, is not something that is in the least palatable, but the court must beware of imposing a regime of its own in place of the statutory regime and the regime required by the European Court of Human Rights.

MISS GIOVANNETTI: My Lord, there is no application.

MR JACOBS: My Lord, the claimant is publicly funded.

MR JUSTICE CRANE: Has a public funding certificate been lodged?

MR JACOBS: Yes.

MR JUSTICE CRANE: Yes, public funding assessment. Thank you both very much.

MR JACOBS: My Lord, I apologise, I have an application for permission to appeal against your Lordship's judgment on the basis that the claimant is now in a precarious position and is a vulnerable individual. In those circumstances, we say that the Secretary of State must carefully consider the matter and it is said that the court is not (inaudible) for reconsideration in an adversarial setting. It is arguable in my submission that the Secretary of State ought to have been by the law and principles directed to formally reconsider and re-interview the applicant on the basis that it would now appear to be accepted that the son does not have his own house, he does not have any income, and he does not have any settled abode. I do submit that this is a situation where there needs to be a further inquiry on the facts because it is a moving target. This is situation which is not covered in S, D and T and, therefore, is a matter of public----

MR JUSTICE CRANE: In what sense is it not covered by S, D and T?

MR JACOBS: My Lord, S, D and T does not envisage a situation where there has been a fundamental change in someone or an apparent change.

MR JUSTICE CRANE: I do not think it is disputed that in the event of a change there may need to be reconsideration.

MR JACOBS: My Lord, we say there has been change.

THE COURT: I know you do. But, rightly or wrongly, I considered it on the basis had there been a change and, rightly or wrongly, decided not, in the sense it should lead to a different result.

MR JACOBS: My Lord, yes.

MR JUSTICE CRANE: So I am not at the moment dealing finally with this, but I am not sure that your point is, that it is not covered by S, D and T, is a good point, in the sense that there is no difficulty with the proposition, indeed I decided it on the basis that a time may come for reconsideration and I have specifically considered that. So I do not think that there is a point of principle there about whether reconsideration may be necessary, I do not think that controversial. The point on which of course you may be unhappy, and I am sure you are, is on whether that would be justified at the particular moment?

MR JACOBS: My Lord, yes.

MR JUSTICE CRANE: Yes.

MR JACOBS: My Lord, on that basis I make the application.

MR JUSTICE CRANE: I am not necessarily saying you are right, but I think that is the point that you really need to address.

MR JACOBS: Indeed, and on that point I say there is an arguable matter of law. Section 55(5) is currently being scrutinised by the courts, though the level of people who are affected by it as such, and in my submission it is in the public interest that all aspects of it are looked at and appropriate guidelines----

MR JUSTICE CRANE: So far as the general aspects of it are concerned, it is going to be looked at by the Court of Appeal, is it not?

MR JACOBS: My Lord, yes.

MR JUSTICE CRANE: Am I right in thinking that nobody has suggested in the present case that the matter be put off until after the Court of Appeal have considered it?

MR JACOBS: My Lord, that is right.

MR JUSTICE CRANE: I am right about that, am I?

MR JACOBS: Yes.

MR JUSTICE CRANE: Yes. I can see why somebody might have asked for that, and indeed I can see why that might have had to be anxiously considered. But nobody did ask for that, and I made it clear that I could see difficulties in that situation, but the ultimate position was that it was adjourned for you to decide the matter, and neither party had quarrelled with that proposition. So the general points of principle, insofar as they arise in S, D and T, will be considered by the Court of Appeal. So there is no justification for appeal on the basis, as it seems to me at least at the moment, that there is some general reason, or some other reason, in the words for the CPR, for giving leave to appeal. I think you would have to justify it on the basis there was a real prospect of success on the merits of this particular case.

MR JACOBS: My Lord, I put the application on the basis that it is incumbent upon the Secretary of State to formally address the application not in an adversarial setting, as has been done, and it is accepted that the court has been put in an unsatisfactory position by the way that this matter has proceeded. In my submission, the area to be considered is to what extent, where there is a material change between initial -- or an apparent material change from an initial decision to a subsequent human rights application, to what extent is it incumbent upon the Secretary of State, applying anxious scrutiny, as he must do, to re-interview and reconsider when there is an allegation, not without foundation, that an elderly lady or a vulnerable individual faces street homelessness. We say that in that context the appropriate course would be to take a broader approach and to say that this is a matter that needs to be properly re-investigated, not as part of an ongoing adversarial process, therefore it is arguable that this application should have been allowed to the extent that the Secretary of State is directed to reconsider and re-interview. My Lord, unless I can assist further, that is my application.

MR JUSTICE CRANE: Thank you. I am against you on leave to appeal. It seems to me the points of principle are already going to go to the Court of Appeal in the case of S, D and T. As to reconsideration, I proceeded on the basis that, in principle, reconsideration may become necessary, but on the merits of this case, having considered the evidence that has been filed, I reached a decision on the particular facts of this case, as far as the court can judge them, at this particular moment. In my view, there is no real prospect of upsetting that conclusion, whatever may be the position, if the position changes in the future.

MISS GIOVANNETTI: Thank you, my Lord.