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

MR JUSTICE OUSELEY: This is an application for judicial review in respect of two decisions of the Secretary of State for the Home Department. The first is a letter dated about 26th November 2004, received by the claimant on 2nd December 2004, and the second is a decision of 11th April 2005. The claimant has been granted permission to amend his grounds so as to challenge that later decision. The Secretary of State says that the later decision completely supersedes the one which was originally the subject matter of the challenge.

The claimant, who was born in March 1980, is a national of Jamaica. He came to the United Kingdom and made an asylum claim based upon an asserted well-founded fear of persecution because he was a homosexual. He also suffered from hepatitis and was HIV positive. He also made a Human Rights claim in respect of Article 3 in relation to removal from the United Kingdom based on those same facts.

He appealed to an Adjudicator against the Secretary of State's refusal to accept his claims. The Adjudicator, in a determination promulgated on 23rd June 2003 following a hearing in April 2003, found that the appellant's evidence was credible, generally, in terms of his sexuality, health, and the various abuses and incidents which had happened to him. He considered background material and concluded that the police would offer little or no protection to homosexual men seeking protection after being attacked or victimised, and that the state was complicit in the practice of victimisation and abuse of homosexuals. They faced abuse from private individuals.

The Adjudicator concluded that the treatment experienced by the claimant was sufficient to constitute persecution and that his return would also breach Article 3 of the ECHR. The Secretary of State obtained leave to appeal against that decision and in a determination notified on 9th July 2004, the IAT allowed the appeal. It did so, essentially, on the basis that, although there was discrimination, cultural, societal and in the criminal law against practising homosexuals and homosexual acts, and that the question of persecution and breach of Article 3 was a matter of degree, it did not see that there had been a substantial substratum of fact to show that the appellant would be subject, on return, to substantial discrimination, violence and abuse to the extent which could engage the Refugee Convention or ECHR. Accordingly, it allowed the Secretary of State's appeal. The Tribunal refused leave to appeal to the Court of Appeal. There was no further challenge to that decision.

On 27th or 28th October 2004 on the same day as, or immediately following, the claimant's detention with a view to his removal to Jamaica, the claimant wrote to the Secretary of State making what he says is a fresh claim. It is a matter of concern that this fresh claim, as it was said to be, was not included in the bundle provided to this court and, so far as I can see, was not provided in the bundle before Mitting J who considered the matter on paper. Miss Malik has confirmed that the letter was intended to include an application under the Immigration Rules paragraph 295D for leave to remain as the partner of someone settled here. It said:

It also made a claim for the first time under Article 8 ECHR, saying that despite the short time that the claimant had been in the UK, he had settled down with his partner. Various other documents were included but although there were references in general terms to the problems faced by the claimant in Jamaica, there was now a focus on this relationship. No additional background material was provided.

The Secretary of State responded to that in the letter which is undated but written approximately around 26th November 2004. In that letter the Secretary of State referred to paragraph 353 of the Immigration Rules which deals with the basis upon which fresh claims are considered. It said that the points raised in the submissions had not previously been considered but, taken together with the material considered by the IAT, they would not create a realistic prospect of success.

The letter sets out the terms of paragraph 295D which include, at paragraph 6, the requirement that the parties had been living together in a relationship akin to marriage which had subsisted for two years or more. It was not accepted that that relationship had subsisted for two years or more because it had not been mentioned either to the Adjudicator in April 2003, or before the Tribunal in July 2004. It would have been expected to have been mentioned. The letter is grammatically uncertain, a comment which applies to both sides' material. It said that it was "now", but it means "not", accepted that the claimant met the requirements of the Rules and the uncertainty over the meaning of the next paragraph is sufficiently clearly resolved by reading it as follows:

Following that letter, judicial review proceedings were launched challenging both the decision to detain the claimant, which has not featured significantly in these proceedings, and challenging also the letter of around 26th November 2004. It sought various reliefs but it is plain from a reading of the grounds that the real point is that there was a fresh claim in reliance upon the relationship which the claimant claimed to have with a partner in the United Kingdom, and that both the claimant and/or the partner, if the partner were to go to Jamaica, would face considerable difficulties because of their homosexuality.

The grounds were supported by a statement of truth. There was no other material from the claimant in the form of a witness statement explaining anything about the relationship. The statement was signed by the solicitor, saying that the claimant believed that the facts stated in the claim form were true. The facts stated in the claim form included that there was an insurmountable obstacle faced by the claimant and his partner in that the pursuit of their relationship in Jamaica would be an offence and "that as a mixed race gay couple they will attract adverse attention leading to degrading treatment." The same point was made in the grounds at paragraph 2 that the Secretary of State had not considered the risk to the claimant because of the adverse attention that the claimant and his partner would attract as a "mixed race couple".

It is clear that this was the gravamen of the new point and it was the reference to a mixed race couple which essentially persuaded Mitting J to grant permission to apply for judicial review. He said that it was arguable that the material amounted to a fresh claim:

The claim form made no reference to any further background material. I am told by Miss Malik that a 2004 November Human Rights Watch Report was appended to the claim form. Mr Waite was unable positively to confirm that that was so. I have seen nothing which suggests that the report was, in fact, annexed. If it had been annexed and expected to play a significant part in the proceedings, I would have expected there to be some reference in the claim form to it. I am prepared to accept, however, that if Miss Malik tells me it was appended, it was appended.

Although the challenge is to the failure of the Secretary of State to recognise the reasonable prospect which it was said the fresh claim had, it is noteworthy that at no stage has the claimant sought to identify what substantive material was new in any of the background material over that which had been placed before the Adjudicator or the IAT. Also, the claimant never drew the Secretary of State's attention to any specific aspect of it. That, if I may say so, is no way in which to pursue a judicial review claim that the Secretary of State has unlawfully failed to consider a fresh claim. If it is to be said that there is a fresh claim, it is at least important that what is said to be fresh about it should be identified to the Secretary of State and to the court.

The basis, however, of the assertion that there is a fresh claim is, first of all, the relationship which is said to exist with the British partner. The relevant provisions of the Rules in relation to a fresh claim is paragraph 353 which provides:

The provisions in the Rules reflect the decisions of the courts. I was referred to R v Secretary of State for the Home Department ex parte Onibiyo, 28th March 1996, in which at page 9 of 13 of the EIN version, the Master of the Rolls included, within the requirements for a fresh claim, that the claim could not be made by relying on evidence available to the applicant but not advanced at the time of an earlier claim. Although that provision does not, in so many words, appear in paragraph 353, it is plainly a necessary part of it.

The relationship between the claimant and his partner is said to give rise to a fresh claim, both by reference to paragraph 295D and under Article 8. It is correct that that claim has not been made until the letter of 28th October 2004. It is by no means clear that it could amount to a fresh claim, given that it is a necessary assertion in the application made on 28th October 2004 that there had been, by that date, already a two year relationship akin to marriage. But this had not featured at all before the Adjudicator or indeed before the Tribunal. The Tribunal would at that time have been limited to consideration of points of law, as subsequent case law showed, but, in practice at that time, such points were regularly made and would most certainly have given some cause for thought.

The position of the Secretary of State in relation to that is now derived from the letter of 11th April 2005. He says that that he is prepared, for the purposes of considering the claim, to assume that there is a relationship that it is a genuine one and has been subsisting since 2002. That is simply for these purposes and not for the purposes of any application for entry clearance. He has made it clear through Mr Waite, that although the letter is silent about the possibility of the claimant's partner going to Jamaica, he has made no assumption that the claimant's partner could go to Jamaica. That is a change of position from that adopted in the first letter of 26th November 2004. It is inherent, therefore, in the Secretary of State's position that he accepts that there would be, if the relationship is genuine, some degree of interference with Article 8 rights enjoyed in this country by the claimant.

He submits, however, that the appropriate question to be asked in examining whether there is a fresh claim is: is there a realistic prospect of the claimant succeeding in showing that there are exceptional circumstances which would lead to a waiver of the requirement which would otherwise apply, that the claimant obtain entry clearance? That is the appropriate test, I accept. I accept that because, in the absence of a valid claim for international protection, the claimant has no right to remain in this country.

Mr Waite submits that there are no prospects of success for the claimant in remaining in this country and avoiding the requirements for entry clearance. In support of his submission he relies upon the case of R on the application of Ekinci V Secretary of State for the Home Department [2003] EWCA Civ 765. He points, in particular, to the importance attached in paragraphs 16 and 17 to the need to maintain the proper procedures for immigration control, and the fact that someone has made an application in this country which could be made from abroad, gives them no particular entitlement to have their application considered in this country if they had no current right to be in the country.

Miss Malik for the claimant, who has performed valiantly, if I may say so, has sought to distinguish Ekinci by reference, in particular, to the very poor immigration record which Ekinci showed by comparison with the absence of any such behaviour by her client, and the ease with which Ekinci could seek entry clearance from Germany to return to be with his family. His family comprised a wife and child which it was said would have made his case for entry clearance that much more certain.

I do not accept Miss Malik's submissions. I accept what Mr Waite has submitted. The Secretary of State was entitled to conclude, in the absence of a separate claim for international protection, that the claimant's only basis for staying in this country would be an Article 8 claim so that he would not have to pursue the normal procedures of returning to Jamaica to make an application for entry clearance. I accept that that does not provide a reasonable prospect of showing exceptional circumstances such that the requirement for entry clearance could be waived. The Secretary of State was entitled to say that the claimant had no basis to remain in the country and should, in all the circumstances, return to Jamaica to make his application for entry clearance. He said that, if successful, it would only take about three months or so. I regard that as a perfectly lawful and proportionate response to the situation which manifests itself here.

I also accept that he was entitled to take into account the very late stage at which this asserted relationship was raised. I would point out that the claimant is in this difficulty. If the relationship is a genuine one and has been subsisting for two years, as they have sought to assert, it follows that they will be asserting a relationship which would have a good prospect of success upon an application for entry clearance. It follows, therefore, that the degree of interference with the relationship would be comparatively short-term. There would also be good prospects on an appeal as Ekinci discussed.

If, on the other hand, as at times Miss Malik's submissions appeared to suggest, there were difficulties in that relationship satisfying the rules (I say that because of her drawing of a contrast with the strength of the case in Ekinci and the possible strength of the case of the claimant here) it would be even less satisfactory for someone with a weak claim under the Rules to be able to stay. As Simon Brown LJ said in paragraph 17 of Ekinci:

The claimant has also raised, as I have said, a certain amount of background material. That background material would be particularly relevant if it were to be assumed that the claimant's partner was returning to Jamaica. However, what is new about the background material has not been identified, and it is clear that the claimant does not put forward a fresh claim to international protection for himself as a homosexual in Jamaica based upon any of the background material before me. That is not the basis of any claim which he has made to the Secretary of State. The fresh claim simply relates to the relationship which he says he now has with his partner in the UK. For the reasons which I have given, that is simply not a basis upon which he has any prospects at all of succeeding in showing that he should not comply with the requirements for entry clearance.

Accordingly, for those reasons this application for judicial review is dismissed.

MISS MALIK: My Lord, without opposition from the Secretary of State's representative, I wish to seek an anonymity order for the claimant.

MR JUSTICE OUSELEY: Yes.

MISS MALIK: Thank you.

MR JUSTICE OUSELEY: I will also make an order that the case should not be referred to other than by the initial "S". Miss Malik, you wanted something else?

MISS MALIK: An assessment of costs.

MR JUSTICE OUSELEY: Yes, you may have your assessment of costs. Thank you.