Tologiwa v Secretary of State for the Home Department

HIS HONOUR JUDGE DAVIES: The central issue in this case is whether or not the claimant can successfully challenge the defendant's decision to certify her human rights claim as clearly unfounded. Her case is that it is at least arguable that the best interests of her child, which she says lie in remaining in the UK rather than being returned to Nigeria, outweigh any other relevant considerations, specifically the need to maintain effective immigration control, when deciding whether or not the claimant and her daughter should be returned to Nigeria. The practical importance of the issue is of course that if the claimant is right in her argument, then she is entitled to exercise a right of appeal in the UK against the adverse decision by the defendant.

When this judicial review claim was issued the defendant's position was contained in a decision letter dated 30th September 2011 but, following the oral hearing before His Honour Judge Waksman QC when he granted permission to bring this claim, the defendant produced a supplemental decision letter dated 4th July 2012 which specifically addressed documents which had been submitted by the claimant's solicitors under cover of a letter dated 23rd August 2011. It is common ground before me that I should consider this case on the basis that that those letters should be read together, although of course depending on the result of my decision issues as to costs might arise.

I will refer to the history of the matter as shortly as I can. In July of 2007 the claimant entered the UK from her home country in Nigeria with her daughter who was then 4 years old. She had a visa to enter valid until July 2008. But she overstayed and subsequently in November of 2009 made an application for indefinite leave to remain.

There followed a series of submissions and decisions and challenges and, most recently, a hearing before a judge in the First-Tier Tribunal, which resulted in a decision in January 2011 which rejected the claimant's claim, including in that decision a rejection of claims based on Article 8 and upon the best interests of the claimant's daughter.

In August 2011 the claimant submitted an asylum and human rights claim. She was subsequently interviewed and on 23rd August 2011 a lengthy letter containing further representations was submitted by her solicitors. In particular it contained a detailed articulation of a case that removal would be counter to the claimant’s and her daughter’s Article 8 rights. Specific reference was made to the requirement for a decision maker to have regard to the best interests of any child when reaching a decision of this kind.

In addition, attached to the letter was a series of documents, including school reports, showing the integration into the community which the claimant's daughter had made and the progress she was making in school and in extra curricular activities as well.

In due course, in October 2011, the defendant responded to the asylum and human rights claim and rejected it, also certifying that the claim was clearly unfounded with the result, as I have said, that there was no right of appeal against that decision within the UK.

The detailed decision letter, which was dated 30th September 2011, rejected the asylum claim made by the claimant and there is no challenge in relation to that rejection. It also rejected the Article 8 claims of both the claimant and her daughter. It made reference to the obligation to consider and to have regard to the best interests of the child, and it made reference to the availability of education in Nigeria as well as other matters.

It is right to say, however, that there was no express reference at all in that letter to the detailed letter of 23rd August 2011 from the claimant's solicitors or to any of the documents attached to it.

Mr Karim argued that it was implicit in the decision letter that the contents of the 23 August 2011 letter and enclosed documents had been taken into account, and that there was no need to refer specifically to the letter or to the supporting documents if they had substantially been addressed. Whilst I agree that one does not need to refer specifically to a letter or other document if it has been considered, it is important that the decision letter shows that the content has been dealt with. In my judgment there is no indication whatsoever in the decision letter that the writer had even seen, let alone considered, the solicitor's letter or the documents which were attached to it.

Indeed, before this claim was issued, when there was an exchange of correspondence in accordance with the pre-action protocol, it does not appear from the correspondence that I have been shown that even at that stage the defendant appreciated that the detailed arguments and the supporting documents in the August 2011 letter had not been addressed, nor were they addressed in the defendant’s subsequent letters.

As I have said, it was only more recently, after Judge Waksman gave permission to bring this claim, that a further detailed letter was submitted by the defendant, being the letter dated 4th July 2012. It is stated to be a letter supplementary to the earlier detailed decision letter and specifically intended to address the documents which were submitted on the 23rd August 2011, including the school reports and the certificates and the like.

It went on to deal with the issue as to the availability of education and educational facilities in Nigeria, and it quoted extensively from the January 2012 country report on Nigeria. It contained certain extracts from that report in paragraph 4 and further extracts in paragraphs 9 and 10. The letter was at least to me a little confusing because in paragraph 4 the extracts were extracts which were largely positive in their terms, whereas the extracts in paragraphs 9 and paragraph 10 were those which did not reveal quite such an positive position. I have been provided by Mr Nicholson, counsel for the claimant, with a full version of the section on education taken from the Country Information Service reports. I do not need to read it all aloud in this judgment. It suffices to say that it records that there is an education system in Nigeria, including primary education from age 6 and secondary education from age 12 to age 18, but that 40% of Nigerian children in the primary school bracket do not attend any school, with the northern region recording the lowest school attendance rate in the country, particularly for girls. Despite a significant recent increase, it is estimated that about 4.7 million children of primary school age are still not in school and it also points out that increased enrolment rates have created challenges in ensuring quality education and satisfactory learning achievement. It goes on to record that although the Nigerian government are making efforts to address the situation, nonetheless the number of schools, facilities and teachers available for basic education remain inadequate for the eligible number of children and youths, the more so in urban areas where there is population pressure. Under these conditions teaching and learning cannot be effective, hence the outcomes are usually below expectation. It goes on to refer to another challenge being the issue of girls' education and the high dropout rate. There is also a reference to a 2010 Human Rights report, where it was estimated that up to 10 million children were outside the conventional school system.

Nonetheless, in paragraph 4 of the 4th July 2012 decision letter, the defendant said:

In paragraph 11 of that decision letter, whilst acknowledging that in Nigeria there may not be access to education of the same standard as the UK, it was said such opportunities are clearly available.

The letter went on to consider the circumstances of the claimant's daughter in school in this country, and the encouragement and assistance she was receiving from the claimant herself at home. In paragraph 6 it was said that the defendant had had regard to its obligations under section 55 of the Borders Citizenship and Immigration Act 2009 and the statutory guidance produced thereunder. Then in paragraph 7 it was said:

In paragraph 11 those points were repeated, and it was further said that the defendant had conducted an overall proportionality assessment, including the maintenance of effective immigration control, and had considered the representations of August 2011 and had decided against the claimant.

So far as the relevant law is concerned there is no particular controversy, so that I will refer to it relatively shortly. The certification system is provided for by section 94 of the Nationality Immigration and Asylum Act 2002. Under subsection (2), if the Secretary of State certifies that a human rights claim made by an applicant whilst in the UK is clearly unfounded, then that person may not bring an appeal against that decision whilst in the UK. The House of Lords in the case of Yogathas [2002] UKHL 36, held that the Home Secretary was entitled to certify if he was reasonably and conscientiously satisfied that the allegation must clearly fail. The issue must be approached in a way that gives full weight to the UK's obligation under the ECHR. The question is: is the claim so clearly without substance that the appeal would be bound to fail. Is it plain that there is nothing of substance?

Mr Nicholson has also referred me, in that context, to the defendant's asylum policy instructions, which make it clear that where a case worker for the defendant is considering this question, then it should be recognised that they must be satisfied that it is a high threshold to achieve.

It is clear, in my judgment, that these questions may often raise factually sensitive issues; in some cases it may be that there is no dispute as to the facts, in which case a decision will either be a right decision or a wrong decision on those particular facts, but in many other cases it may be necessary before a decision can be taken for the full facts as relevant to the decision to be ascertained. That is something which I will return to in this judgment.

I should also make some reference to the state of the law so far as the best interests of children are concerned. The leading authority is now of course the decision of the Supreme Court in the case of ZH (Tanzania) [2011] UKSC 4. It is not necessary for me to refer to that case in detail; it suffices for me to make reference to certain paragraphs in the judgment of Lady Hale. In particular, having considered the applicable law, in paragraph 29 she posed the question: "what is encompassed in the best interests of the child"? She said this:

In paragraph 30 she emphasised the importance of nationality. In paragraphs 34 to 37 she emphasised the importance of ascertaining the best interests of the child, which in appropriate cases might involve asking the child directly in one or a number of ways.

I have also been referred by Mr Karim, who appears for the defendant, to a recent decision of Langstaff J sitting in the Administrative Court in Leeds which considered the question as to what is encompassed within the phrase "the best interests of the child", namely the case of R (Asefa) v Secretary of State Home Department [2012] EWHC 56 (Admin). That was a case where the claimant was a citizen of Eritrea but she had travelled on to Italy where she had successfully obtained asylum and where her three children had subsequently joined her. But she then clandestinely and unlawfully entered the UK and claimed asylum there, not disclosing that she had already successfully obtained asylum in Italy. She was challenging the decision to remove her to Italy, and she was relying in particular upon her assertion that removal to Italy with her children would be contrary to their best interests, the children then being happily settled at local schools in the UK.

Having referred to the issues Langstaff J, in a section beginning at paragraph 42 of his judgment and continuing through to paragraph 58, considered the question as to what the best interests of the child involved. Again, I do not propose to set out the whole of that part of the judgment in this judgment today. It is sufficient for me to refer to paragraph 57, where he drew four conclusions from the matters to which he had referred:

I should also refer to paragraph 58 where he said this:

Those observations were particularly apposite in that case because, in paragraphs 59 and 60, Langstaff J went on to explain that he was entitled to make the assumption, which I have no doubt was fully justified on the evidence in that case, that there was no significant difference in terms of risk or security or the assurance of fundamental rights as between the UK and Italy, and that he could also assume that any difference in the standard of provision relating to economic, educational and social provision was likely to be minimal.

In my judgment it is clear from these and other authorities that these questions cannot properly be addressed at a high level of generality. It is clear that the decision maker has to focus on the individual circumstances of the individual child.

Finally, so far as the relevant authorities are concerned, I was referred to a decision of the Upper Tribunal Immigration and Asylum Chamber in the case of OEA & Ors v Secretary of State Home Department [2011] UKUT 00315 IAC, a decision of Blake J sitting with a Senior Immigration Judge. That was a case in some ways similar to the present, in that there was a challenge against a decision to remove the appellants, two nationals of Nigeria, with their children to Nigeria, and the issue arose as to whether or not that would be contrary to the best interests of the child.

In paragraph 27, the Upper Tribunal posed the question which had to be asked. In paragraph 35, they identified the correct starting point, which is that in considering the welfare and the best interests of a young child it is in the child's best interests to live with and be brought up by his or her parents, subject to any very strong contra-indication. In paragraph 36 it was recorded that in that case there was no evidence to suggest that the return of these children to Nigeria with their parents would place them at any risk of harm or prejudice to their welfare. In paragraph 40, they went on to say, having regard to the particular age of those children, that the nature and degree of private life that they had forged was still very much of a personal intra-family nature, with the focus on the home and family, because their children in that case had only just started primary school, so that in paragraph 41 they went on to say there was no evidence the children had as yet formed any deep strong friendships outside the family.

Finally in paragraph 42, they recognised that, whilst a move to Nigeria will require some adaptation to a new home, new school and church:

They also made reference to the network of family support that there would be for the children in Nigeria.

It seems to me that what that particular judgment illustrates, as Mr Nicholson emphasised, is that decisions like this have to be taken by reference to the specific facts of the case, and if there is any dispute as to those relevant factual circumstances they have to be addressed and the facts have to be found before a conclusion can properly be reached.

In my judgment the appropriate starting point in this case is to consider the letter of 30th September 2011. That, I am satisfied, was not a satisfactory response to the claim because it simply did not engage with the detailed representations made in the letter of 23rd August 2011, or the documents which were supplied with it. I have no doubt that the most likely explanation for that is that that letter was simply not brought to the attention of whoever it was who wrote the detailed decision letter.

It seems to me therefore that if matters had rested as they had when this case came on before Judge Waksman, then the defendant would simply have had no credible argument. The crux of the question now, in my judgment, is whether the decision letter of the 4th July 2012 changes the position because it is clear from what I have already said that it did address, in some detail, the arguments advanced and the documents supplied.

There was an argument advanced by Mr Nicholson that, despite purporting to address the arguments and the claim, in fact no positive finding was made as to what is in the best interests of the claimant's daughter. I do not accept that. It seems to me that in paragraph 7 of the letter, a clear finding was made, which seems to me to be absolutely right, namely that the claimant’s child's best interests lay in remaining with the claimant herself. I accept that paragraph 11 contains some unhappily worded statements, but nonetheless overall it seems to me clear that this was the basic finding in the letter.

Secondly, there was a criticism by Mr Nicholson that the letter did not consider or address any countervailing factors. But it seems to me, again on a fair reading of paragraph 7 and paragraph 11 in particular, where reference was made to the importance of maintaining effective immigration control, that the countervailing factors were identified and a balancing exercise was undertaken.

Mr Nicholson also submitted in his skeleton argument that there had been no attempt to investigate the child's own wishes other than through the claimant herself. Again, I reject that as a criticism. It seems to me that there clearly was evidence in the form of the school reports and the like, which identified the child's bests interests from a source other than her mother, but in any event in a case like this it does not seem to me there is any reason to believe there is going to be any significant difference between the position of both of them.

However, Mr Nicholson also made what I consider to be a much more powerful submission that what this letter did not do was to consider the child's best interests in the particular factual context of this case. In particular, it did not consider the impact of removal of the child to Nigeria, both in the context of the educational facilities which would actually be available to her and also more generally her welfare and care and opportunities.

I should say, at this point, that in the letter of the 23rd August 2011, the claimant's solicitor made reference not only to the positive way in which the claimant's daughter had integrated into school but also to the fact that she had family members in the UK as well as her mother's church members and circle of friends to provide support, and that was in contradiction to the position, which it was said await her in Nigeria if returned, where she would return to a situation of danger for her mother and, at best, a life of uncertainty, fear and upheaval. Again, reference was made to the fact that if returned there would be no support that could be expected from her father, indeed the converse.

Whilst I accept that adverse findings were made in relation to the claim for asylum, which was based in part upon the risk of danger from the father if they were to return, nonetheless, it seemed to me what that letter was doing was focussing upon the comparison between what the position actually was in this country with what the position was likely to be if the claimant and her child were returned to Nigeria. However it seems to me that there was simply no engagement in the letter of 30th September or in the letter of 4th July with that fundamental question as to what the position would be if the claimant and her daughter were returned to Nigeria. In particular, where they would go? What work might realistically be available to the claimant? How would she look after her daughter if she was working? What accommodation might be available? What alternative financial support or accommodation might be available if the claimant could not find work? What support might be expected from the family in Nigeria, or other friends or support networks or anything like that?

There was some passing reference, in paragraphs 51 and 57 of the September 2011 decision letter, to the fact that the claimant was a well educated resourceful woman, who had been able to find employment in Nigeria previously but that is seems to me is in no way sufficient, when one is considering the best interests of the child, to answer the question what actually was likely to happen to the claimant's daughter if she was returned to Nigeria with her mother.

Secondly, so far as education is concerned, it seems to me that the letter of 4th July 2012 made a very significant assumption, which was to equate the availability of education in Nigeria, in other words the fact that there was an opportunity of accessing education in Nigeria, with an assertion that the claimant's daughter would actually be able to access that education.

It seems to me that that was obviously an assumption too far, because the evidence in the country report to which I have referred shows, in my judgment, that it would very much depend on a number of significant factors. In particular it would depend, it seems to me, on where the claimant and her daughter would go? What sort of facilities there were in that area or those areas? What the barriers were to education, whether the schools might be full or empty and the like? Simply to say, it seems to me, based upon the report, that in general terms education is available when it is also made clear that as a matter of fact education is by no means guaranteed to be available to many if not the majority of individual children in Nigeria, was to make an unsubstantiated conclusion, without looking at the individual facts of the case.

That is the sort of factual enquiry which clearly was undertaken by the Immigration Tribunal in the case of EA and, it seems to me, ought to be considered by an Immigration Tribunal in this case so that appropriate factual findings can be made from which proper conclusions can be drawn.

I accept, as Mr Karim has submitted to me, that there are here strong countervailing factors against the the best interests of the claimant’s daughter being treated as conclusive. In particular, it is the case that the claimant has spent most of her life in Nigeria. She clearly in the past has been able to live and work there, and she is someone who came to the UK and overstayed. Her daughter spent her earlier years in Nigeria. Neither of them are UK citizens and there are no established family connections here. It is clear that the primary best interest of the claimant's daughter is to remain with her mother wherever her mother is. But, as I say, it does seem to me that although those factors point powerfully to a conclusion that the best interests of the claimant's daughter in the end may not militate against the claimant and her daughter being returned, without a factual investigation comparing the situation in this country for them with the situation in Nigeria for them, I do not consider that I am in a position to conclude that the claimant simply has no arguable prospect whatsoever of succeeding in her case.

I return to where I started, which is I must consider the case, having regard not just to the evidence which is available but to the evidence which might be expected to be available, and I must be satisfied that this claimant simply cannot have any realistic prospect whatsoever of succeeding before an Immigration Tribunal having regard to that evidence. I am unable to be satisfied to that high and exacting standard. It seems to me that fairness requires that the claimant should be entitled to present her case by way of an in-country appeal to the First-tier Tribunal. Whether or not she will succeed there is not for me to express an opinion about. I am satisfied simply that she should have that opportunity.

For those reasons, I am satisfied that this claim should be allowed.

MR NICHOLSON: My Lord I am very grateful. We would seek our costs in the usual way.

HIS HONOUR JUDGE DAVIES: Mr Karim?

MR KARIM: I cannot resist that.

HIS HONOUR JUDGE DAVIES: I will make an order quashing the decision of the Secretary of State certifying the claimant's claim as clearly unfounded.

MR NICHOLSON: That is right.

HIS HONOUR JUDGE DAVIES: Paragraph 1: the defendant's decision to certify the claimant's human rights claim as clearly unfounded is quashed. Paragraph 2: the defendant shall pay the claimant's costs of the claim, which shall be the subject of a detailed assessment on the standard basis, if not agreed. Shall I also make an order that there should be an assessment of the claimant's publicly funded costs?

MR JUSTICE NICOL: I think you had better, my Lord.

HIS HONOUR JUDGE DAVIES: There shall be a detailed assessment of the claimant's publicly funded costs which shall, if practicable, take place at the same time. I think that is the appropriate order. If there is to be detailed assessment it should be dealt with at the same time.

MR NICHOLSON: I am grateful my Lord.

MR KARIM: Just for completeness sake. Can I ask your Lordship to order an expedited transcript to be produced because at the moment there is a considerable delay in producing that transcript and thereafter also ask for an extension of time for permission to appeal, because no doubt those instructing myself will want to have sight of the detailed judgment before we ask, if appropriate, for permission to appeal.

HIS HONOUR JUDGE DAVIES: Whether or not it will make any difference, I will make that order. So paragraph 3: the production of a transcript of this judgment shall be expedited, if possible, and the time for any appeal shall be extended until 21 days after the date of receipt of the approved transcript by the defendant.

MR KARIM: Could I ask you to slightly amend that from seeking an appeal, to amend that to say seeking permission to appeal.

HIS HONOUR JUDGE DAVIES: Yes. The time for any appeal including any application for permission to appeal, because that will give you sufficient time to lodge the appeal. But in those circumstances there will be any need for you to go through the process of asking me for permission first and then waiting for that before launching the appeal. You can ask permission from the Court of Appeal in the appeal notice.

MR KARIM: My Lord, thank you very much.

HIS HONOUR JUDGE DAVIES: Thank you both very much for your very helpful and detailed submissions.