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

MR JUSTICE DAVIS: This is a claim for judicial review made by Abdullah Abdi Hussein, pursuant to permission granted by Mr Justice Silber on 28th March 2003.

I am told that one particular reason, although not perhaps the only reason, for the grant of permission was to await the outcome of the potentially relevant case of Ekinci in respect of which leave to appeal had been given by Lord Justice Sedley and which has since been the subject of the decision of the Court of Appeal on 17th June 2003.

The relief sought by the claim form which was issued on 12th March 2003 was a quashing order of a decision by the Secretary of State for the Home Department certifying, by a letter of 8th March 2003, the position with regard to a claim under Article 8 of the Human Rights Convention. There have in the past, as I will mention, been asylum aspects, on refugee grounds, to the claimant's position but those are not, now, the subject of any challenge.

The background facts are these. The claimant is a Somali national being, so it is said, a member of the Ashraf clan. On 29th November 2000 the claimant sought asylum in the Netherlands. For that purpose he stated that he had been born on 1st January 1974 and he also saw fit to pursue that particular asylum claim under the name of Mohamed Abdulla Gedi. On 7th February 2001 the claimant's asylum claim in the Netherlands was refused. He lodged an appeal against the refusal of his asylum application but on 28th September 2001 the appeal was rejected by the Dutch courts.

The evidence indicates that, nevertheless, the claimant remained in the Netherlands and it is a clear inference from the evidence put in that, notwithstanding the rejection of his appeal, he continued in the following few months to be provided with accommodation and subsistence in the Netherlands. At all events and before, in fact, he had been turned out of his accommodation in the Netherlands, the claimant had decided to make his way to the United Kingdom.

On 14th April 2002 he arrived as an undocumented passenger at Dover. He claimed asylum and stated that his name was Abdullah Abdi Hussein and that he was a Somali national. On this occasion he said that he had been born on 1st January 1975. The notes of interview (he having been interviewed on 15th April) gave his personal details as being a farmer by profession, and recorded that he was married, that he had a deceased father and a family living in Somalia. He claimed to have left Somalia on 2nd March 2002 for Ethiopia and then through to Italy. He said that on 4th April 2002 he travelled to the Netherlands by train from Italy and on 14th April he left the Netherlands by car to travel to the United Kingdom. It is evident that that particular account was false.

As it happens, the claimant had a connection with the United Kingdom in the form of a lady friend called Kifaaya Adan Yuusuf. She, also, is a citizen of Somalia and her evidence is that she, too, is a member of the Ashraf clan. She had come to the United Kingdom, according to her witness statement, arriving in April 2003 -- so that, I think, must be a slip for 2002 -- and claimed asylum. She said she had been subjected to multiple rape, carried out in Somalia whilst she was there.

It may be recorded that recently her asylum claim has been refused but she has been granted humanitarian leave to remain in this country. The position was that the claimant knew, as he says, Kifaaya Adan Yuusuf and that was one of the reasons, and indeed the main reason, why he chose to come to the United Kingdom; he having known her for many years in Somalia.

On 11th June 2002 the claimant went through a form of Islamic marriage ceremony with Kifaaya Adan Yuusuf. That may not have been the kind of ceremony that would have caused them to be recognised as husband and wife in this country but, at all events, this form of marriage was not notified to the defendant until 4th March 2003.

On 16th July 2002 the claimant was registered as an absconder by the Dutch authorities. On 29th November 2002 the claimant's immigration history in the Netherlands was confirmed by the Dutch authorities as a result of a positive fingerprint match. The claimant does not dispute, now, that he was indeed the applicant under the name Mohamed Abdulla Gedi in the Netherlands. On 2nd December 2002 the United Kingdom asked the Netherlands to accept responsibility for the claimant's asylum claim under the provisions of article 8 of the Dublin Convention and on 10th February 2003 the Netherlands accepted responsibility under the terms of that convention.

On 24th February 2003 the claimant's asylum claim in the United Kingdom was refused and that was certified under section 11 of the 1999 Act. On 4th March 2003 the claimant's representatives, the South Manchester Law Centre, wrote to the Immigration Service in Leeds notifying the Immigration Service, for the first time, of the form of marriage ceremony which the claimant and Miss Kifaaya Adan Yuusuf had gone through on 11th June 2002. Those lawyers asserted an interference with his convention rights, by reference to Article 8 of the European Convention of Human Rights, were the claimant to be removed to the Netherlands.

On 5th March 2003 directions for removal to the Netherlands were set for 11th March, and on 8th March 2003 the defendant certified that the allegation of an infringement of the claimant's Article 8 human rights was manifestly unfounded under section 72(2)(a) of the 1999 Act. On 10th March the claimant's representatives asked for that removal to be deferred. The defendant, the Secretary of State, declined to accede to that request and, that evening, a temporary injunction restraining removal was granted by order of the High Court. This application was then lodged and has taken that course in the way I have indicated.

It might be mentioned that on 14th May 2003, the claimant married Kifaaya Adan Yuusuf in a civil ceremony at Trafford Register Office.

The actual letter of certification is dated 8th March 2003 and that, formally speaking, is the subject of the complaint in this claim form. However, and without objection from Mr Waite, counsel appearing for the Secretary of State before me today, Miss Plimmer, counsel appearing for the claimant, has advanced further grounds in support of this claim by reference to a subsequent decision letter of the Home Office dated 8th October 2003.

So far as the letter of 8th March 2003 is concerned, that is a detailed letter comprising twelve paragraphs. One of the points made in that letter by the Home Office is that the claimant, as indeed Miss Yuusuf, had been well aware since their separate arrivals to the United Kingdom that their potential rights of residence in the United Kingdom were, at best, precarious, depending upon the asylum claims. The letter stated in paragraph 5 that there were no insurmountable obstacles to the claimant and Miss Yuusuf living together in the future. The paragraph went on:

The Secretary of State went on in the letter to accept that there may be some interference with the claimant's right to family life under Article 8. However, he went on to say he believed that such interference as there might be was justified in the particular circumstances, by reference to ensuring the security and economic well-being of the country, preventing disorder and discouraging others from circumventing the system and protecting the rights and freedom of others who do follow the proper procedures to enter this country.

The letter went on then to set out a number of other relevant considerations and referred to the general approach of the Secretary of State which is to attach great weight to the mandatory requirement for a foreign national seeking settlement in the United Kingdom to hold prior entry clearance for that purpose, and the Secretary of State is firmly of the view that that requirement should be waived only in the most exceptional circumstances. Reference is also made to the Mahmood decision of the Court of Appeal in 2000. The letter concluded:

For the purposes of this claim an amount of material has been put in, including statements of the claimant and of Kifaaya Adan Yuusuf. The claimant stated, by reference to his time in the Netherlands, that he was terrified he would have to leave the refugee camp as he had nowhere else to live in the Netherlands. He claimed that he had, and still has, no friends or family in the Netherlands and no-one to turn to for help with money or somewhere to stay. He referred to what he said was the fact that he knew other Somali asylum seekers who had had their applications refused and he had watched them as they left the camp with nowhere to go and, as he said, they had to live and sleep on the streets and beg for money.

He explained why it was that he came to the United Kingdom; essentially because he knew Kifaaya Adan Yuusuf was in the country. At paragraph 6 he says this:

He then refers to their financial position. He goes on, then, to summarise the sequence of events and he says this at paragraph 9:

It is not necessary to read the rest of that paragraph. He then goes on to say that he is very concerned that his plight in the Netherlands (that is to say the asserted likelihood that he would be homeless and begging for his basic needs) would not enable him to pursue any entry clearance application during the many months it was likely to take for a decision to be reached and an appeal heard. He goes on to express concern for the emotional and mental well-being of both his wife and himself if they were separated in such circumstances. He goes on to say this:

There are various other paragraphs in the statement (which I bear in mind) before he concludes by saying that he requests the Secretary of State to consider the particular circumstances of his case as exceptional. That statement is dated 22nd September 2003.

The statement of Kifaaya Adan Yuusuf is dated 24th September 2003. She refers to the background and to the form of marriage she went through with the claimant on 11th June 2002. She says that she and her husband are completely dependent on each other in the United Kingdom and she says this at paragraph 5:

A little later on she says this:

An amount of other material was also put in, including certain material, which I will come on to mention, relating to the position in the Netherlands. Dealing with the material put in, the Secretary of State responded by a letter dated 8th October 2003. That letter was signed by Mr Taylor of the Third Country Unit; he also having, in the interim, put in a detailed witness statement at an earlier stage in these proceedings, dated 8th July 2003, setting out the approach of the Secretary of State. I should add that Miss Plimmer had been minded to criticise that statement of 8th July 2003 as evidencing a wrong approach in principle but in my view, having considered that statement carefully, it does nothing of the kind.

The letter of 8th October 2003 is designed to deal with the further points raised on behalf of the claimant. After expressing the view, understandably, in my opinion, that it was puzzling that these points had not been raised at an earlier stage, Mr Taylor, on behalf of the Secretary of State, deals in great detail with the various points made. With regard to the claim, by reference to Article 3 of the ECHR, as to destitution, Mr Taylor, in great detail, deals with the allegations that the claimant would be destitute upon his return to the Netherlands and, as a failed asylum seeker there, would not be entitled to receive any form of financial support and that he is likely to be left to be street homeless and forced to resort to begging.

The response to that of Mr Taylor was to say the assertions were highly speculative. In paragraph 6 this is said:

The letter went on to refer to the availability of charitable organisations in the Netherlands and also drew attention to the fact that, notwithstanding his previous failed asylum application in the Netherlands, the claimant had been enabled to remain there for a further period of months receiving accommodation and support.

Various other detailed points are raised by Mr Taylor dealing with the assertions by reference to Article 3. The letter then went on to deal with the assertion that there would be no ability to apply for an entry clearance and that is dealt with in detail at paragraph 14 of the letter.

Finally, the letter deals with the suggestion that the exercise of discretion had not been properly made and that the factors had not been sufficiently taken into account. It referred to an argument that the claimant's relationship with his wife brought him within express terms of the stated announced policy and, in particular, by reference to paragraph 2(f) of that policy which indicated that discretion may be exercised according to the merits of the case where the family link was not one which would normally be considered but there was clear evidence that the applicant was wholly or mainly dependent on a relative in the United Kingdom and there was an absence of similar support elsewhere. That was rejected in the letter of 8th October. Paragraph 17 conclude in this way:

In the course of her doughty submissions on behalf of the claimant, Miss Plimmer drew my attention to a number of principles and to a number of authorities. She pointed out, by reference to the recent Court of Appeal decision in the case of Razgar [2003] EWCA Civ 840, that various propositions of law could be extracted. She drew my attention, in particular, to the passage starting at paragraph 26 and following and submitted that, overall, there were positions arising, as Razgar stated, that an Article 8 claim would often be trumped by Article 8(2); but, as was made clear in the cited decision in Boultif, Article 8(2) issues are fact sensitive. There would, all the same, undoubtedly be cases where the Secretary of State would reasonably be entitled to certify under Section 72(2(a) on the grounds that an Article 8 claim would be bound to fail by reference to Article 8(2).

Miss Plimmer refers me, in particular, to paragraph 65 of the Razgar judgment and draws a number of other propositions from that case. She stresses, for example, that Parliament has set a high threshhold indeed, imposing the test of "manifestly unfounded". She draws attention to the fact that Razgar stresses, as indeed many of these cases do, that all these kinds of cases must be given the most anxious scrutiny. She draws attention to the approach laid down, for assessing the position in the way in which the House of Lords has explained in the decision in Yogathas. All in all, I think Miss Plimmer is entirely right to stress that the standard here is set very high, where the Secretary of State is to be entitled to certify and the court must consider, with anxious scrutiny, the position in such a situation.

Miss Plimmer puts her case in three different ways although, in truth, as it seems to me, really, and I think Miss Plimmer herself rightly acknowledged, the ways in which she put her case to some extent overlap. Her first way of putting the case is that the assertion by the Secretary of State, that the claimant did not come within the family links policy applicable to the third country cases, was arguably wrong. She does not need to say anything more than that; she need not show that it is wrong. All she needs to show is that she has an argument available to her entitling the claimant to launch an appeal.

She submits that paragraph 2(f) of the policy does include those whose family links do not meet the other aspects of the policy and must include spouses, and that there are exceptional features in the instant case, including the nature of the dependency with no alternative support; particularly in the light of the claimant's wife's seemingly accepted past history of serious ill-treatment.

She further submits that the Secretary of State had fettered his discretion in this context and the Secretary of State was obliged to consider the particular nature of the relationship and mutual dependency without alternative support, alongside other factors as part of the relevant balancing act, notwithstanding the conclusion that the link came outwith paragraph 2(f).

In my view, there is manifestly nothing in that particular point. The letter of 8th October 2003 dealt precisely with those points, particularly in paragraphs 15 to 17 of the letter. It seems to me that there is no basis for attacking the way in which those points were dealt with. This was a discretionary matter and, as it seems to me, there is no basis at all for saying the Secretary of State approached the matter in the wrong way or fettered his discretion in any particular wrongful way. On the contrary, the letter makes it quite clear that all relevant circumstances were taken into account.

I would only add that, in this context as in other contexts, Miss Plimmer placed emphasis on the particular nature of the relationship and the mutual dependency between the claimant and his wife. The passages of the evidence which I have read do not seem to me to give rise to any exceptional circumstances at all. It is entirely understandable that there is emotional, and a degree of practical, dependency between the claimant and his wife but no special features -- for example, any particular kind of mental problems or particular personal difficulties -- are identified to take this case out of, regrettably, what is an all too common situation. In my judgment, there is nothing in that particular point.

The second point which Miss Plimmer makes is to say that there has been a wrong assessment of the position were the claimant to be returned to the Netherlands. The claimant says that he will not be entitled to support for his basic needs and accommodation and that has not sufficiently been taken into account. It is said that the Secretary of State has produced no evidence to rebut what the claimant says and, in particular, Miss Plimmer places reliance on two letters from the Dutch Refugee Council which is dated 6th June 2003. The letter addressed to the claimant's solicitors says this:

More particularly relevant, for immediate purposes, is a letter of 12th June 2003 from the same body in the Netherlands to the claimant's solicitors saying this:

Miss Plimmer criticised that as speculation but it does not seem to me to be speculation at all in the sense that, realistically, the claimant would be in a position to claim asylum in the Netherlands. Miss Plimmer, in her skeleton argument, asserts that the claimant has no grounds upon which to base a fresh application but that is, itself, speculation because no evidential basis for that has been advanced at all.

What Miss Plimmer really submits is that there is a real risk that the claimant's circumstances in the Netherlands will reach, or come close to reaching, the necessary severe level of degrading treatment. Alternatively, she submits that even if it does not come as close as that, still it will be harsh and that is a relevant factor which has not been taken into account.

In my view, that is not made out on the evidence. The letter of 12th June from the Dutch Refugee Council is very broadly and loosely put. Moreover, the past history relating to this claimant in the Netherlands shows that, notwithstanding his asylum appeal had failed, he could get accommodation and subsistence. Nothing moreover is said about whether or not he has the possibility of obtaining assistance from charitable or other bodies were he to return to the Netherlands or whether there would be any possibility of his obtaining assistance from members of the Somali community there. In my view, there is absolutely nothing in this point. It was properly dealt with and, indeed, disposed of in the letter of 8th October 2003.

The final point raised by Miss Plimmer is to stress the prospective length of time, as she would say, of the separation between the claimant and his wife and, therefore, the degree of interference with family and private life. This, undoubtedly, has been an important aspect of the claim and the decision in Ekinci was awaited, I apprehend, with interest by both sides to this claim.

Unfortunately for the claimant, the decision of the Court of Appeal in Ekinci was by no means helpful to his case. The background circumstances there were, of course, fact dependent but in broad terms were analogous to the present case. One of the points made in that particular case was that if the claimant there (Mr Ekinci) were removed to a safe third country then his wife would be in great difficulties because his wife, who was entitled to reside in the United Kingdom, had a mother of considerable age in the United Kingdom and other family obligations, including a son with a medical problem, and therefore the wife would not be able to join Mr Ekinci if he were returned to Germany, which was the safe third country in question. It was accepted that, in practice, she would not be able to accompany her husband to Germany.

One of the points that was particularly discussed in that case (which was a case, I stress, about certification) was the relevance of a claimant's entitlement, if removed from this country to a safe third country, to apply for entry clearance into the UK. In dealing with that aspect, Lord Justice Simon Brown, with whom Lord Justice Kay and Mr Justice Bodey agreed, said this at paragraph 16:

Lord Justice Sedley had then referred to the case of Shala and said that:

In those circumstances, Lord Justice Simon Brown decided that the Secretary of State was entitled to certify the allegation that Article 8 was infringed as manifestly unfounded and that the Secretary of State was entitled to be reasonably and conscientiously satisfied that the allegation would clearly have failed and that any appeal would be bound to fail, adopting the words of Lord Bingham and Lord Hope.

It seems to me that those observations of Lord Justice Simon Brown, by reference to the relevance of the entitlement to apply for entry clearance, are directly in point here. Indeed, Miss Plimmer does not deny that. Miss Plimmer also accepts, as I think she must, that it would indeed be, in Lord Justice Simon Brown's words, "a bizarre and unsatisfactory result if the less able the applicant is to satisfy the full requirements for entry clearance, the more readily he should be excused the need to apply."

I would accept that all these cases do have to be answered by reference to their own particular facts. An example can be taken in the recent case of Nadarajah which Miss Plimmer referred me to. In the present case, Miss Plimmer submitted that there are, or at least arguably are, grounds here giving rise to exceptional circumstances. She says here that in the present case, in contrast to Ekinci, the claimant's wife was not a settled British wife. Well, that is true in one sense but, nevertheless, the very fact that she now has humanitarian leave to remain, as it seems to me, tells strongly against the argument because it does mean that prospectively, for the next three years or so, the claimant's wife will be entitled to remain in the United Kingdom and he will therefore be able to apply to join her in that particular period.

Miss Plimmer submitted that in Ekinci, the bad conduct of the claimant there was far worse than in the present case. That may well be right. However, it is a relevant fact here that the claimant here has behaved in a deceptive way with a view to obtaining entry to this country and, indeed, of course, the background is that his asylum claim in the Netherlands, in fact, failed (on the basis that he then advances). She points out that in Ekinci there was no evidence that the conditions in Germany would be harsh for that appellant. That may well be right but, as I have indicated in the present case, the evidence adduced on behalf of the claimant does not begin to show sufficient harshness of prospective treatment likely to be received by him in the Netherlands were he to be returned as being a relevant consideration in this context.

Miss Plimmer also points out that in Ekinci the wife had family to whom she could turn to for emotional support in the United Kingdom. I accept, too, that that is another distinction and the evidence here does indicate that the claimant's wife would be on her own. As I have already indicated, the evidence as to emotional dependence is not of the strongest here by any manner of means and there is no real suggestion that the claimant's wife would be wholly unable to cope, were the claimant to leave.

I repeat that I accept that these cases do ultimately have to be decided by reference to their own facts. Nevertheless, the approach set out in Ekinci is instructive and unquestionably, and at its lowest, the availability of the entitlement to apply for entry clearance is highly material. Here, if the claimant is returned to the Netherlands he could apply for entry clearance to this country. It may be, indeed, that the claimant's wife could likewise apply for entry to the Netherlands though I appreciate that the evidence shows she has no entitlement as such to go there. But all in all, the evidence falls completely short, even addressing the matter by reference to the test of arguability, of showing any error in approach of the Secretary of State.

In my view, there are simply no exceptional circumstances shown here on the evidence to displace the Secretary of State's conclusion that this contention, by reference to the European Convention on Human Rights, was manifestly unfounded. In all those circumstances, it seems to me that there is no basis for this claim, that the certification of the Secretary of State is unimpeachable and that he was entirely justified in deciding both in March and, indeed, in October 2003 that the allegations made were manifestly unfounded. Therefore, I dismiss this claim.

MISS PLIMMER: My Lord, the claimant is publicly funded. I hope there is a certificate on file.

MR JUSTICE DAVIS: Have I seen that certificate? (Handed) We have a certificate up for March, Miss Plimmer.

MISS PLIMMER: My Lord, could I take the file?

MR JUSTICE DAVIS: Could you make sure to lodge the appropriate certificate. It is right you should have your representation on that. You will remind the Legal Aid people that this claim is with leave.

MISS PLIMMER: Yes, my Lord, thank you. I do not have any other application.

MR JUSTICE DAVIS: Can you do it in seven days, Miss Plimmer?

MISS PLIMMER: Yes, my Lord.

MR JUSTICE DAVIS: Mr Waite, it does follow course that the interim injunction also lapses in the light of my dismissal of this claim.

MR WAITE: Yes, my Lord.