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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Whittle, R (on the application of) v The Secretary of State for the Home Department [2015] EWHC 4212 (Admin) (03 November 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/4212.html Cite as: [2015] EWHC 4212 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		3 November 2015

1. THE DEPUTY JUDGE: This is an oral renewal of an application for permission to seek judicial review of decisions by the defendant concerning the immigration position of the claimant.
2. The application was refused by Upper Tribunal judge John Freeman in a decision dated, I think, 11 April 2015. He directed that any request for oral reconsideration should be directed to this court rather than determined in the Upper Tribunal.
3. The immigration history in this case is not entirely clear and has been thrown into a degree of further confusion by some of the observations of Ms Lorna Simpson, who I permitted to make representations on behalf of the applicant orally before me, albeit that she is not a party to these proceedings and not a legal representative but claims to be the partner of the claimant applicant in these proceedings.
4. As far as was recorded, at least before the additional representations made by Ms Simpson this morning, the applicant entered the United Kingdom as a visitor as long ago as September 1999. He would only have been permitted a limited period of permission to stay. There can be no dispute that he overstayed that permission.
5. His first application to regularise his position appears to have been made in June 2005 when he sought leave to remain as a student. As I have indicated, by then he was already an overstayer without leave.
6. It is material, for reasons that I will come to later, that no fear of persecution was alleged at that time as a basis for his application. The application was refused on 20 June 2005.
7. He made a second application for leave to remain in September 2005. This time he applied for leave as a spouse. Again, no allegation was made of any fear of persecution if he was not permitted to stay. Again, at that time he would have been an overstayer.
8. For reasons that are not clear to me, some considerable time was taken in dealing with that application. It was eventually refused on 29 April 2008. As a consequence of that refusal he was served, on 8 May 2008, with what are called "overstayer papers", no doubt requiring him to remove himself from the United Kingdom.
9. Some sort of right of appeal arose as a result and, indeed, he did appeal, apparently on 27 May 2008. On 15 July 2008 that appeal was allowed. So, for the first time in nine years or so, his immigration status was regularised in the sense that he was granted discretionary leave to remain until 22 August 2011. Thereafter, of course, he would have, and indeed did, become an overstayer unless an application for further leave to remain was made and granted.
10. What is not documented but what emerged in the course of oral submissions made by Ms Simpson is that he may, in fact, have left the country on one or more occasions to return to Jamaica in 2009 and then returned to this country, although it is far from clear to me when that was. It would have been achieved because it was during the currency of the discretionary leave to remain that he had.
11. At all events, as I have indicated, after his latest return to this country he overstayed beyond his discretionary leave to remain and thereby, again, ceased to have any lawful presence in this country with effect from 22 August 2011.
12. He compounded his lack of immigration status by being arrested for, and in due course convicted of, certain drug offences. After that arrest he was interviewed by authorities concerning a variety of matters, which included his immigration and family life circumstances. It is asserted in more than one location in the papers that, although he claimed to be the father of three children within the jurisdiction, he was unable to give the dates of birth of any of his children or the telephone number of their mother.
13. At the time of his arrest, as I have indicated, he had, again, become an overstayer. Despite that, having been served with immigration enforcement papers identifying the liability for removal, he was given temporary admission. That was on conditions and he failed to abide by the reporting conditions that were imposed on him.
14. At this stage, at the time of his interview, again he did not raise any fear of persecution as a ground for his admission.
15. He must have been bailed in relation to his arrest for drug offences as well and it is to be inferred from the fact that he was not arrested until 13 February 2014, and not convicted until 23 September 2014, that he must have breached his bail condition in relation to the drug offences as well.
16. Before I deal with those offences, in 2013 he made an Article 8 application, based on his alleged family life with his ex wife and their children, for permission to remain. That was refused by decision letter dated 16 May 2013. That decision letter is produced for the first time by the defendants, not by the claimant, as I would have expected it to have been produced, and it was produced as some of the documentation behind a skeleton argument prepared for today's hearing by Mr Williams who appears for the defendant.
17. It is conspicuous from that decision letter that the decision carried with it a right of appeal. That is dealt with in paragraph 21 of the decision letter. It carried with it the entitlement to remain in the United Kingdom while an appeal is pending, if an appeal was in fact made. In fact, the position is that no appeal was made against that decision. Rather, in the months that ensued, he did not satisfy either his bail conditions or his immigration reporting conditions.
18. He was arrested, as I have indicated, on 13 February 2014, convicted on 23 September and, on 27 November, he was sentenced to nine months' imprisonment, as I understand it on two counts of possession with intent to supply, or at least being concerned with supply, in relation to 29 so-called wraps of class A drugs. He was sentenced to a period of nine months' imprisonment but that sentence was suspended for two years.
19. Subsequent to that he again sought to regularise his position in that, on 17 December 2014, he made another application to remain in the United Kingdom on the basis of his family life. This time it was based on the presence within the United Kingdom of his three children, who are claimed to be British nationals. No fear of persecution if returned to Jamaica was alleged in that application either, even though, by then, according to Ms Simpson orally this morning but not in any evidence before the court, he had returned to Jamaica in order to attend, in 2009, the funerals of two brothers who had been murdered in circumstances that are far from clear to me but which are said by Ms Simpson to carry with them implications for the security and safety of Mr Whittle in Jamaica. As I have said, none of that was raised in any of the applications to remain in the period up to and including this application on 17 December.
20. The application for leave to remain was refused by the defendant on 18 January 2015. The defendant did not accept that the applicant had established on evidence any parental relationship with the children he claimed to be the father of. She also found no evidence of a subsisting relationship with Ms Lorna Simpson, who appears today, and she also decided that it was relevant that he must have entered that relationship, said to subsist, and which has now produced, Ms Simpson says, the daughter with whom she attends and is present in court this morning, that he entered that relationship, according to the Secretary of State, in full knowledge of his precarious immigration status at that time.
21. Moreover, she took into account as part of her immigration decision, and regarded herself as entitled to take into account, the fact that he had been arrested for drug offences, that he had breached his bail in relation to those offences, when arrested he had been convicted of those offences, that he had regularly failed to regularise his immigration status with the authorities in this country and that he had also not answered to the immigration bail conditions imposed after his interview as long ago as December 2012.
22. On 7 February 2015, removal directions having been set by the defendant, the claimant made further submissions. These were the submissions that, for the first time, purported to allege a well-founded fear of persecution if the claimant was returned to Jamaica. Those submissions are contained in a letter from his then representatives, AP Solicitors, dated 7 February 2015.
23. I have carefully considered and reconsidered that letter and I do not find in it any particularisation at all of the basis of the alleged fear of persecution or evidence in support of the fear of persecution if returned to Jamaica.
24. That is the immigration history.
25. In the light of that immigration history, faced with removal directions that had been fixed, no application was made either for issue of a writ of habeas corpus, to challenge the setting of removal directions or to seek an injunction to prevent removal, and so the removal took effect. Indeed, the position is that the claimant was removed from the jurisdiction, I think, on or about 8 February 2015 and, as far as I am aware, is now in Jamaica.
26. It is conspicuous that, despite all the other activity in this litigation, which I am about to refer to, there has been no evident participation of the claimant in this litigation whatsoever. There is no evidence of any steps that he has taken to instruct representation in relation to these proceedings, there is no witness evidence from him, there is no attempt by him to file any other evidence in support of any of the contentions now relied upon on his behalf. Instead, on 27 February 2015, an application was made on his behalf essentially by Ms Simpson, who signed the statement of truth in relation to it, identified that she was seeking representation by the Bar pro bono service. It is right to say that she did secure some support and representation in that regard, which resulted in amended grounds and outline submissions being settled by counsel, Mr Paul Turner, dated 25 September 2015. Nonetheless, Mr Turner does not appear today and Ms Simpson appears in person without any representation.
27. Essentially, the combined effect of the amended grounds and the original application purport to challenge the decision making of the Secretary of State on two grounds. One is based on the claim which the applicant has made for habeas corpus and a second is that he has been denied an in-country right of appeal which, it is submitted on his behalf, he was entitled to.
28. The matter was listed to come before this court today. As I have indicated, Ms Simpson appears unrepresented today. She applies for an adjournment. She intimates that a meeting is scheduled with Mr Turner, or rather at Mr Turner's suggestion, with a solicitor whom she does not identify, on a date that she does not identify, based upon the expectation, the justification of which is not in fact explained, that Legal Services Commission funding will be granted for the further representation of Mr Whittle in these proceedings. No evidence is adduced to explain why representation could not be arranged today or why a further adjournment from today is necessary or appropriate or justified in the circumstances.
29. Mr Williams, who appears on behalf of the defendant and who has taken instructions, has objected to the grant of the adjournment and, in my judgment, has done so on good grounds.
30. There are no good reasons that I can see why a further adjournment is justified in this case. In no small part, what drives me to that conclusion also is what, in my judgment, is the lack of merit to the applications now being made.
31. So far as the habeas corpus point is concerned, a knockout blow in that regard was delivered in the judgment of the Supreme Court in the Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah, [2012] UKSC 48.
32. In that case, at paragraphs 43 and 44, the Supreme Court describe the inappropriateness of a habeas corpus solution, if I can so describe it, in any circumstances where, at the time of the relevant application, the defendant party to the application does not in fact have custody of the person detained or, therefore, the means of producing his release. That was the position when the application was made by claim form dated 27 February 2015 because, by then, the applicant was beyond the seas, out of the jurisdiction and out of the custody of the defendant. In those circumstances, there is simply no substance to that point in this litigation whatsoever.
33. If and insofar as there is any complaint about the circumstances of his detention and the legality of it -- and Ms Simpson does raise a number of issues that she wishes to explore in that regard -- then, in my judgment, it seems that those are all justiciable by civil proceedings against the Secretary of State if necessary, those civil proceedings can still be brought in civil courts, do not require the presence within the jurisdiction of the claimant and, in those circumstances, that alternative remedy, in any event, would be a good reason for refusing an application for judicial review.
34. The second matter relates to the alleged denial of a right of appeal. As Mr Williams submits, the right of appeal only arises in the face of an immigration decision. There is no immigration decision challenged in this case that attracts a right of appeal. Rather, there was the application based on fear of persecution made for the first time on 7 February 2014. That was treated by the defendant as a purported application for a fresh claim, to be considered in the usual way under the usual immigration rules, that is paragraph 353 of the Immigration Rules.
35. In my judgment, the decision letter in relation to those submissions indicated that the defendant gave anxious scrutiny to all of the representations made in that regard. In particular, it is conspicuous, as I have already mentioned, that no basis for the fear of persecution, or evidence in support of the allegation of it, were raised in those further submissions, and there were a number of other reasons expressed by the Secretary of State for why she was not prepared to consider this to be a fresh claim. That is not an immigration decision that gives rise to a right of appeal and there is, therefore, no arguable case in relation to that second ground either.
36. For all of those reasons, not only do I refuse the application to adjourn, but I also dismiss the application for permission to seek judicial review.
37. MR WILLIAMS: My Lord, two matters, if I may. The first is in the lengthy immigration history of the claimant, the only matter my Lord didn't have express reference to was the decision letter of 8 February of this year, but my Lord touched upon it in the judgment at the end.
38. THE DEPUTY JUDGE: I did and I think that is sufficient.
39. MR WILLIAMS: I am grateful, my Lord.
40. The second point is, in relation to costs I don't seek my costs of attending today nor for producing the skeleton argument yesterday. I do, however, seek the costs of the original --
41. THE DEPUTY JUDGE: John McEnroe might say: "you cannot be serious". The only person against whom I can order those costs is Mr Whittle and he is beyond the seas. There is no prospect on the evidence of being able to enforce that against him. What is the point? Can't I get on with my planning appeal instead?
42. THE APPLICANT: My Lord, it would take two minutes to make the order and, in my submission --
43. THE DEPUTY JUDGE: It will take no minutes to reject it.
44. MR WILLIAMS: In my respectful submission, my Lord, it is appropriate to do so. The matter of enforcement, of course, is a matter primarily for the Secretary of State. If there is difficulty in enforcing it, they may not do. But in this case there may be an application for entry clearance, the claimant may return on the basis of the evidence put forward. He would have a judgment against him. In my submission it is entirely appropriate in these circumstances.
45. The Secretary of State has been put to quite considerable expense, not just for the acknowledgment of service but also the skeleton argument I produced yesterday and today. Simply to make an award --
46. THE DEPUTY JUDGE: You have already conceded you cannot seek costs in relation to those.
47. MR WILLIAMS: My Lord, I don't have instructions to seek costs but I do have instructions to seek costs in relation to the acknowledgment of service.
48. THE DEPUTY JUDGE: No order for costs, Mr Williams.
49. MR WILLIAMS: I am grateful, my Lord.
50. THE DEPUTY JUDGE: And so, I think, to planning.
51. Ms Simpson, that concludes proceedings in relation to your case this morning. I am going to move on to my next case.
52. MS SIMPSON: Thank you.