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

MR JUSTICE MAURICE KAY: This is a challenge to a decision of the Secretary of State by which he certified the claimant's appeal under the Human Rights Act 1998 as manifestly unfounded pursuant to section 72(2)(a) of the Immigration and Asylum Act 1999. The case has a complex history and it is necessary for me to set it out in some detail.

The claimant is a national of Sri Lanka. He arrived in this country on 15th May 1998 as a clandestine and illegal entrant. On arrival he falsely stated that he had not claimed asylum in any other member state of the European Union and that he had travelled from Sri Lanka via Russia and some other unknown countries. Fingerprint enquiries soon established that he had in fact travelled to Germany in 1996 and had claimed asylum there, but his application had been refused by the German authorities on 6th June 1998. As a result of that Germany accepted responsibility for determining his asylum claim, and on 18th December 1998 his application was certified under section 2 of the Asylum and Immigration Act 1996.

In fact, the claimant was not then removed to Germany because he made an application for judicial review (I shall refer to that as "the first judicial review application"). It was based on the assertion that Germany would return him to Sri Lanka in breach of its obligations under the Refugee Convention. The application became one of many that were stood out pending the test cases of Adan and Aitseguer [2001] 2 AC 477, which were eventually decided in the House of Lords on 19th December 2000. The claimant's application was subsequently dismissed by consent on 22nd January 2002.

Meanwhile, the claimant's wife, whom he had married in Sri Lanka in 1996 shortly before he left that country, had arrived in the United Kingdom on 10th July 2000, some two years after the claimant had arrived here. She made her own asylum claim. In her statement of evidence form she made no mention of the presence of the claimant in this country, and in interview some six months later she denied all knowledge of the claimant's whereabouts. The Secretary of State refused her claim on 28th February 2001.

The next development chronologically was that on 31st May 2001 the Secretary of State, through one of his officials, wrote to the claimant's solicitors in the light of the decision of the House of Lords. The position adopted by the Secretary of State was that, on its facts, the claimant's first judicial review application did not fall within the narrow "protection gap" identified in Adan. It is a long and closely reasoned letter, explaining, amongst other things, that the German authorities had confirmed that upon return to Germany they would consider a fresh claim under either the Refugee Convention or the European Convention on Human Rights and Fundamental Freedoms ("ECHR").

As I have said, it was on 22nd January 2002 that the first application for judicial review was dismissed. On that same day the claimant commenced a second application for judicial review. By that time his wife had been in this country for well over a year. However, the detailed grounds advanced in his second application made no reference to the presence of his wife. They asserted that Germany would return him to Sri Lanka in breach of his human rights. Permission was refused on the papers and an application was made to renew at an oral hearing.

Some weeks later, on 21st February 2002, the claimant's solicitors mentioned to the Secretary of State for the first time the presence of the claimant's wife and child in this country. The child had been born in August 2001 in this country. It will be recalled that some five months before that the claimant's wife was denying all knowledge of her husband's whereabouts.

In the letter of 21st February the solicitors asserted that the claimant's removal would place this country in breach of its obligations under Article 8 of the ECHR. That resulted in a decision letter of 23rd July 2002, by which the Secretary of State certified the Article 8 claim as being manifestly unfounded under section 72(2)(a) of the Immigration Act 1999. That is not the decision that is under challenge in these proceedings.

The letter of 23rd July referred expressly to the Secretary of State's "family links policy". This is a policy which enables applicants who would otherwise be returnable to a safe third country to have their asylum claims considered substantively in the United Kingdom if they have significant family links with this country, including, in appropriate circumstances, spouses who are present here.

The present text of the family links policy is to be found in an answer from the Immigration Minister published in Hansard on 22nd July 2002 - that is the day before the decision letter to which I have just referred. It reads in part as follows:

Prior to that the family links policy had been set out in a letter from an official to the Refugee Unit of the United Kingdom Immigration Advisory Service on 21st March 1991. That too is relevant to these proceedings. The material parts state:

It is to be observed that one of the differences between the 2002 statement and the 1991 version is that under the former a spouse who has been the subject of an initial decision on his or her asylum claim is not a relevant family member for the purposes of the family links policy.

The decision letter of 23rd July 2002 explained, by reference to the 1991 version, why the claimant was not entitled to benefit from the family links policy. The reason given was that his wife had been the subject of an initial decision on her application on 28th February 2001. Although the Secretary of State referred to the 1991 policy, this was of course the day after the Immigration Minister had set out the 2002 version. That decision letter of 23rd July 2002 was never made the subject of an application for judicial review.

On 24th July 2002 the claimant's solicitors wrote to the Secretary of State, stating that neither the claimant's wife nor her previous solicitors had received the letter of 28th February 2001 refusing her asylum. No doubt the claimant's present solicitors wrote that letter on instructions. However, it is to be observed that a perusal of the documents suggests that the previous solicitors had indeed been aware of the refusal of asylum.

On 9th October 2002 the Secretary of State sent the claimant's solicitors a copy of the refusal letter in his wife's case. On 11th November 2002 the claimant's solicitors alleged that the presence of his wife and child in this country would render his removal in breach of Article 8 of the ECHR, but made no reference to the family links policy.

On 26th November the Secretary of State replied unfavourably and certified that the allegation was manifestly unfounded under section 72(2)(a). That is the decision which is the subject of challenge in these proceedings.

On 27th November 2002 the claimant's solicitors asserted for the first time that the claimant was entitled to benefit from the family links policy as expressed on 21st March 1991. It was asserted that as the claimant's wife is an asylum seeker in the United Kingdom he was entitled to benefit from the policy.

The Secretary of State replied the following day, relying on the policy as expounded on 22nd July 2002 by which the fact of an initial decision on the wife's asylum application would take the case outside that policy.

In July 2003 the claimant's wife was, it seems, served with a notice triggering her right of appeal against the unfavourable decision on her asylum application. That has led to her filing an appeal, but that has not yet been determined and remains unlisted. That then is the factual background.

The first point advanced on behalf of the claimant by Mr Lewis is in the form of a submission that from the date of the wife's application for asylum, that is 11th July 2000, until her application was refused, on 28th February 2001, or possibly until a later date, he fell within the 1991 family links policy, but his case was never considered on that basis.

The answer of the Secretary of State, through Mr Waite, is that at all material times the claimant fell outside the policy. Mr Waite submits that it is material that the policy applies to "potential" third country cases. He submits that as at the date of the wife's application for asylum in July 2000 the claimant was not a "potential" third country case. To be "potential" required that no decision had yet been taken, whereas in fact a decision had been taken on 18th December 1998 and had been certified under section 2 of the 1996 Act.

Mr Waite recognises that this construction of the policy is not one that has been advanced on behalf of the Secretary of State in previous cases in which it might have been relevant, for example, the case of Nadarajah, which was one of the cases considered in the Court of Appeal on 19th June 2003 in Secretary of State for the Home Department v Razgar [2003] ECWA Civ 840, or in R (on the application of) Gashi v Secretary of State for the Home Department [2003] EWHC 1198 Admin, which I decided on 23rd May 2003. However, Mr Waite submits, it is the true construction, or, alternatively, one that the Secretary of State is reasonably entitled to advance in relation to his own policy in accordance with the judgment in Gashi at paragraph 13. He submits that the construction for which he contends arises out of the natural meaning of the language and is consistent with the purpose of the policy: the swift removal of those whose claims should be substantively determined elsewhere.

For his part, Mr Lewis criticises this approach. He submits that it is strained and novel; although of course novelty in itself would not necessarily mean that the construction was wrong. Mr Lewis further submits that the narrow interpretation advanced on behalf of the Secretary of State ignores the fact that in many cases, including this one, the matter is not frozen at a moment in time. Here a new decision to certify as a third country case was taken in November 2001, therefore immediately prior to that decision this was being considered as a "potential third country case". In many cases the Secretary of State properly reviews a decision in the light of further representations and developments, and that can only be on the basis that it is being considered again as a "potential third country case".

In my judgment, there is force in Mr Lewis' submissions, and I accept them. Moreover, if the construction contended for by the Secretary of State were correct, the family links policy would generally have a very restricted ambit indeed because the decision to remove someone to a third country, pursuant to the Dublin Convention, is usually taken soon after the asylum application is made. However, for a variety of reasons, it is not always implemented with rapidity.

In my judgment, it would be contrary to the purpose of the family links policy, that is the reuniting of members of an existing family unit who have become fragmented for reasons beyond their control, to restrict its application as is suggested on behalf of the Secretary of State. I have concluded that the Secretary of State's construction is not correct in law, nor is it one which he is reasonably entitled to adopt. It follows from this conclusion that the claimant should not have been excluded from consideration under the policy simply on a chronological basis.

Mr Waite's next point is that if the claimant fell within the 1991 policy for a period of time, it is inevitable that the Secretary of State would have exercised his discretion adversely to the claimant. He submits that on any basis this was an unmeritorious case. In that regard he is entitled to draw comfort from the observations of Davis J when he somewhat reluctantly granted permission in this case, observing that it is on the face of it "one of the most unmeritorious applications that one would wish to see".

Mr Waite is certainly on firm ground when he emphasises the broad discretion retained by the Secretary of State under the 1991 version of the policy. He emphasises the words "broadly speaking", "substantial area of discretion" and "normally". In Abdullai Osman Conteh v Secretary of State for the Home Department [1992] Imm AR 594 the Court of Appeal observed at page 601:

The exercise of discretion in the present case would undoubtedly have taken the following matters into consideration. First, the claimant's unmeritorious immigration history, including his attempt to deceive the Secretary of State's officials in relation to his unsuccessful asylum claim in Germany and the fact that, as is now established, having left Germany he also made a claim in the Netherlands before absconding to this country. Secondly, the circumstances of the marriage. Soon after it had taken place in Sri Lanka the claimant departed that country, leaving his wife behind. She did not come to this country until four years later, some two years after the claimant had arrived following his time in Germany and the Netherlands. When his wife was interviewed six months after her arrival she said she knew nothing of his whereabouts, although she must have been pregnant at the time. It was not until February 2002 that the Secretary of State was made aware that the claimant's wife and child were in this country and were being relied upon by him for the first time. This has never been properly explained. These circumstances, including the brevity of their time together, albeit in the context of what is accepted to be a genuine marriage, point to the conclusion that this was not a "normal" case within the policy. I agree with Mr Waite's submission based on the witness statement of Mr Ian Taylor, the Senior Case Worker in the Third Country Unit, that the claimant would not have received an exercise of discretion in his favour under the 1991 policy.

There is now a further issue to consider. Assuming, as I have found, that the claimant had been entitled to be considered under the 1991 policy, was the Secretary of State entitled in November 2002 to certify the claim under Article 8 as manifestly unfounded?

It is common ground that there is a genuine and subsisting family life between the claimant, his wife and child and that removal would interfere with it. The issue, therefore, becomes one of proportionality under Article 8(2). I keep in mind that a challenge to a manifestly unfounded certificate requires the court to consider whether the Secretary of State was correct to conclude that the claimant's case is so clearly without substance that an appeal to the adjudicator would be bound to fail.

What decision would have been taken if the presence of the claimant's wife had been brought to the Secretary of State's notice in a timely fashion? As Mr Taylor observes in his witness statement, this involves something of an artificial exercise as the claimant had concealed his wife's presence in this country for almost two years. However, his evidence is that having regard to all the circumstances, including the ones to which I have just referred in the context of discretion under the policy, it would always have been considered proportionate to remove the claimant, notwithstanding the engagement of Article 8. In this context the claimant's immigration history is of particular relevance. In effect, the claimant is attempting to use his deceptive entry and continued presence in this country to circumvent the requirements of immigration law.

In Mahmood v Secretary of State for the Home Department [2001] 1 WLR 840 the Court of Appeal emphasised the need to treat aspiring immigrants on a basis of equality. The recent judgment of Simon Brown LJ in R (on the application of) Ekinci v Secretary of State [2003] EWCA Civ 765 brought together the strands of the recent jurisprudence in the context of Article 8 and the "manifestly unfounded" certificate. He said at paragraphs 10 and 11:

All this resonates in the present case. As Mr Waite observes, if the claimant is removed to Germany and his wife is then successful in her asylum appeal in this country, the claimant will be able to apply to join her here under the entry clearance scheme. If, on the other hand, the claimant succeeds in obtaining refugee status in Germany, she will be able to apply to join him there. If both are ultimately unsuccessful in their respective claims they can return to a life together in Sri Lanka. There is no reason to suppose that, whatever the outcome, finality will not be achieved within a relatively short timescale.

In these circumstances, I am satisfied that if the Secretary of State had taken the 1991 version of the family links policy into consideration when addressing the issue of proportionality in relation to Article 8, he would have come to the same conclusion and would have still certified the claim. In my judgment, he would have been justified in so doing.

It follows from all I have said that the grounds of challenge, ably advanced by Mr Lewis, are unsustainable and that the application for judicial review must fail. In reaching these conclusions I am satisfied that a new point raised by Mr Lewis for the first time at the outset of the hearing does not affect that outcome. The new point relates to the claimant's first application for judicial review. Both Mr Waite and Mr Taylor, in his witness statement, referred to the first application for judicial review as having been unsuccessful. Mr Lewis submits that that is incorrect and that in reality the claimant's application was successful.

As a matter of history, the first application was one of those cases stood out while Adan and Aitseguer wended their way to the House of Lords. The claimants in those cases were successful in their appeals. The suggestion is that this would have led to the claimant succeeding in his first application for judicial review, but that because the original decision of the Secretary of State, the certification under section 2 of the 1996 Act, was withdrawn and replaced by a new decision certifying under section 11 of the 1999 Act, it was pragmatic for the application in the first judicial review application to be withdrawn or dismissed by consent.

In the circumstances of this particular case, I regard the submission that the first judicial review application had been heading for success after Adan and Aitseguer as highly tendentious. In the closely reasoned letter dated 31st May 2001 the Secretary of State persuasively contended that the decision of the House of Lords did not avail this claimant. The case for the claimant is that if he had had at least some prospect of success after Adan it was wrong of Mr Taylor to include in the points against the claimant on the issues of discretion and proportionality the "unsuccessful" application in the first judicial review case. It also meant that the claimant's immigration history is not as "unmeritorious" as has been suggested.

I simply do not accept that these points have the effect suggested by Mr Lewis. The Secretary of State's letter of 31st May 2001 was not challenged at the time. In my judgment, he was entitled to conclude that this claimant would not have been able to succeed in the first judicial review application, notwithstanding the decision of the House of Lords.

For all these reasons I refuse this application for judicial review.

MR LEWIS: My Lord, I understand there is no application from my learned friend. I am legally assisted in this matter and I would make an application for the usual order in respect of assessment.

MR JUSTICE MAURICE KAY: Yes. Do we have your certificate on file?

MR LEWIS: I do hope so.

MR JUSTICE MAURICE KAY: Thank you both very much.