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Case no: CO/1088/2000
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand
London wc2
Wednesday, 24th May 2000
BEFORE:
MR JUSTICE OWEN
-------------------
R e g i n a
- v -
ex paret Otaru
____________________
(Computer-Aided Transcript of the stenograph notes of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________
MR K HAMMOND (instructed by Victor Evans & Co, London SE1) appeared
on behalf of the Applicant
MISS J COLLIER (instructed by The Treasury Solicitor) appeared on behalf
of the Defendant
____________________
J U D G M E N T
(s Approved by the Court)
Crown Copyright ©
Wednesday, 24th May 2000
JUDGMENT
1. MR JUSTICE OWEN: This is an application for permission to apply for judicial
review of a removal order against the applicant for 29th March 2000. That is
set out in the form 86A.
2. The history of the applicant is set out in part in the affidavit which is
attached to the 86A and in part in a letter dated 22nd May of this year, a
letter from the Chief Immigration Officer to the solicitors for the
applicant.
3. What happened was that on 19th December of last year the applicant was
refused leave to enter the United Kingdom in the following terms:
"You ask for leave to enter the United Kingdom as a returning resident. I am
satisfied that on 12th October 1993 you obtained a previous leave to remain by
deception."
4. The essential facts are that on 15th April 1992 the applicant married one
Doreen Botang, a British citizen. He submitted an application for leave to
remain on the basis of this marriage. He was granted an initial 12 months on
the basis of marriage, and on 12th October 1993 he was granted indefinite leave
to remain following a further application. That is the decision to which
reference was made in the refusal on 19th December 1999.
5. The grounds on which the decision was made are set out clearly in the letter
of 22nd May. It is not necessary for me to go into all the details.
6. On 3rd May the specific points of evidence to support the contention are
listed. The contention being made at that time was that at the time when the
indefinite leave to remain was granted, he was in a subsisting relationship
with another woman to whom he eventually became married. She has in her turn
made application to the authorities for leave to remain. Certainly at this time
she had no legal right to remain.
7. The specific points of evidence set out are firstly the statement which was
made under caution of Miss Botang that she and the applicant had never lived
together. I have been shown a copy of that statement. It is indeed under
caution. She signed to say that she appreciates that, if the statement is
tendered in evidence, she will be liable to prosecution if she has wilfully
stated in it anything which she knows to be false or does not believe to be
true. In that statement she does indeed make the statement which is attributed
to her.
8. However, since that time she has made a statement contained in an affidavit
to the solicitors acting for the applicant. In the affidavit she says that she
lived together with her husband, the present applicant, as husband and wife and
they intended to live together permanently as husband and wife. That was at and
after the marriage on 15th April 1992.
9. They started, she says, to have marital problems in November 1993. She moved
out of the matrimonial home on 30th November 1993 and thereafter, she says,
although she had been in favour of the applicant's application for indefinite
leave to remain in the United Kingdom (and that was granted on 13th October
1993) all that she had said in her interview with the authorities in August
1998 (and that is the date of the written statement) were not totally correct
and "it was just a means to get back at my exhusband for all the emotional
trouble he had caused me in the past." That is the end of the quotation.
10. She also made reference to a letter which she had written on 5th February
1999. That is some six or seven months after she had made this statement under
caution. There in that letter she said she had been provoked and disturbed by
her exhusband, and she repeats that they did in fact live together and were
living together and that she had made the spiteful remarks in the statement she
had made under caution merely because she was cross with him.
11. So that is now the situation. Of course that was not the situation when the
decision was made on 19th December 1999 because she had then made another
statement although it does appear, if her letter is correct, that the letter to
which I have made reference had been sent to the Chief Immigration Officer on
5th February 1999.
12. Mr Hammond on behalf of the applicant says that the basis of the case
against the applicant has in effect gone. He draws attention to the remarks
made on the fourth page of this letter. He indicates that representations had
been made on the applicant's case. Included amongst those was a representation
from his Member of Parliament, but it is said that those have been rejected. He
says that the matter is put forward in her letter of 5th February -- he says of
2000 but it is actually dated 1999. I do not know if in fact it was 5th
February 2000 but if so that postdated the decision which was made in December.
I can only look at the documents as I see them. It may well be that that date
is wrong.
13. The letter goes on:
"She is now stating that she signed both letters submitted in support of your
client's application in 1992 and 1993. Her original statement of 1998 was of
course given under caution. I would not wish to comment to any great extent on
her present statement as I would not wish to prejudice the possibility of
future action in this respect. What I will mention however is that it is now
very difficult indeed to know where the truth lies or to attach great weight to
Miss Botang's present statements."
14. Reliance is placed upon that, saying that in those circumstances how could
you possibly have come to the decision to which you say you came? Of course it
seems to me that the decision-maker was not aware of these at the time
nevertheless what has been said since has been considered and it is not
sufficient to change the decision.
15. The second matter put forward is her statement that "she had not submitted
both the letters in support of your client's application." That is contained in
the statement of 17th August 1998 under caution. She now says in her affidavit
that the remarks she made at that time were not true and were a part of this
spitful attitude she had to her husband at that time.
16. The next matter which is put forward is that "the couple's first child" the
couple being the applicant and Ms Nzekwe "was before the grant of indefinite
leave to remain, and the birth certificate showed your client to be living at
the same address as Ms Nzekwe at that time."
17. The birth was on 28th August 1993 which of course predates the grant of
indefinite leave which was in October of 1993.
18. The next matter which is stated is that although he claimed to have lived
with Miss Botang it was rather surprising that he was unable to remember the
name of her child with whom he had also lived. It is a matter of comment but no
more that apparently for half an hour he could not recollect the name of that
child although he did after that time. Certainly of itself it would not be
sufficient to come to any conclusion but it is another matter. What is said is
that in these circumstances the decision-maker was entitled to come to the
conclusion to which he did come and to make the decision which he did to refuse
leave.
19. At this stage it might be as well if I indicate that the letter goes on to
state that the Immigration Officer also considered whether there were "any
sufficiently countervailing factors to justify exercising discretion." He took
into account the new wife. He took into account the children. Although the
children were born here and cannot be required to leave the United Kingdom,
the letter says:
"They were considered to be of ages [six and four] where they could adapt to
life outside the United Kingdom and therefore after reference to a Chief
Immigration Officer your client was refused leave to enter."
20. That then is the general factual background and it is upon that basis that
it is argued by Mr Hammond that the decision is wrong in law. He talks of the
standard of proof. That was, he said, so great as closely to approximate the
criminal standard. He says that standard could not have been satisfied. He
quotes the various matters to which I have made reference a against that it is
argued for the respondent that ex parte Soate to be found in 1986 1 Weekly L.R.
477 indicates that what ought to have happened here was that there should have
been if it was thought right an appeal under section 13 of the 1971 Act. There
was that alternative remedy which should have been taken. Soate is clearly an
authority for saying that except in exceptional circumstances, leave as it was
in those days, permission now, for an application for judicial review should
not be granted because there is a right of appeal and the exceptional
circumstances are not (were not in that case) exceptional. I have also been
referred by Mr Hammond to the second edition of Judicial Review by Silverstone
and Cowdey, in particular to paragraph 15-24 in which there is a quotation from
Lord Widgery CJ's judgment in ex parte Royco Homes Limited. There he said:
"Where a decision was liable to be upset as a matter of law then it might be
difficult if the matter of law is ... Because on the face it was clearly made
without jurisdiction or as a consequence of an error of law, where it was more
efficient, cheaper and quicker to proceed by way of certiorari then that
remedy, namely of judicial review, should be available."
21. He says that here it should be available and in effect says that there were
exceptional circumstances. I was also referred to the decision of Laws J as he
then was refusing leave in an immigration case in ex parte Kevte Mehmet. That
is to be seen at 15-26 of the same volume.
22. There certain propositions are quoted. In particular I am asked to look at
3, 5 and 6 which I have done. The question really does come down however to
seeing whether there are any exceptional circumstances. Mr Hammond says, if you
look at what is said in particular by Laws J, then you can see what the proper
way is of approaching this problem.
"3. A failure to exhaust an alternative remedy brought about by the error or
incompetence of the applicant's legal representatives will not of itself
constitute an exceptional circumstance. Such failures however do not weigh so
heavily as a deliberate decision not to exhaust the alternative remedy...
"5. However exceptional circumstances may arise from a combination of factors
each of which would of itself be insufficient. The question of exceptional
circumstances must therefore be considered in the round. It is relevant to
consider whether the applicant gave an early indication that he intended to
challenge the decision.
"6. If the court thinks that the merits of an application are strong so that
the court is satisfied that the applicant was denied substantial justice by the
decision-maker's decision this will weigh powerfully in favour of a finding of
exceptional circumstances."
23. There is no doubt that the general principle as set out by Laws J and
indeed in many other cases is that the applicant would usually be required to
exhaust his alternative remedy at appeal to the Tribunal (in this case the
Adjudicator) before the court would grant leave to move for judicial review.
Prima facie a failure to appeal constitutes a good reason for refusing
leave.
24. That then is the submission which is made by Mr Hammond. He also refers me
to ex parte Lawson a decision of the Court of Appeal in January 1994, a case in
which he appeared on behalf of the applicant, being led by a QC. It does not
seem to me that that case adds anything to that which Laws J had said. If the
court decided the decision was clearly wrong in law, then it had power to act,
said the court. The question was: what does wrong in law mean? The way Mr
Hammond puts it is, if you decide the matter on wrong facts, is the way he put
it, then the decision must be wrong in law. I do not accept that that is in
fact a correct approach.
25. It seems to me that I have to consider the fact that there was an
alternative remedy and ask should it in fact have been exercised rather than
come here? I have no doubt in finding that that is what should have happened.
But what about the contention which is made by Mr Hammond that the decision was
blatantly wrong. He says that it was blatantly wrong because it relied so much
on the evidence of a woman who undoubtedly had been crossed according to her
later affidavit in her love life and who was spiteful towards him. It seems to
me that much more important is the fact that the birth certificate shows that
on 28th August 1993 he was living at the same address as the other woman. In
any event, taking all the evidence together, certainly if one applies the
Wednesbury principles, clearly this was a decision which the decision-maker was
entitled to make.
26. I have been referred to Abdus Satar which is reported at page 195 of the
Immigration Appeal Reports 1998. That case seems to be relevant here. There
there was a court refusal there. I refer now merely to the headnote:
"Accordingly the criteria laid down in Kawaja as to the burden and standard of
proof did not apply before the court. The only challenge could be on Wednesbury
principles. Soate followed."
27. It seems to me that there are two separate reasons why I should refuse this
application for judicial review. The primary one is what I can call usefully
the Soate ruling. The other one is equally in my view strong. Certainly I
cannot see so far as Soate is concerned any circumstances whatsoever.
28. I did not actually refer to the policy relating to children and I think I
should because, though it is not in the original application, Mr Hammond did
rely upon it. That is DP4 of 1996. It provides by paragraph 4:
"When deportation (inaudible) is being considered against a parent or parents
the existence of children in the United Kingdom is a factor which must be taken
into account when assessing the merits of such action. The weight to be
attached to children as a compassionate factor will vary from case to case and
has to be balanced against or along with the other factors.
"5. In all cases the longer the child has been here the greater will be the
weight to be attached to this as a factor. But the general presumption will be
that a child who has spent less than ten years [it says] In the United Kingdom
would be able to adapt to life abroad."
29. That has been amended, as is agreed by Mr Hammond. Subject to that I
understand that he agrees that this policy is still applicable. That amendment
is from ten years to seven years. Of course it is only a policy but it is
nonetheless right to say that the policy should be followed unless there is
good reason for not following it. Here the elder of the two children is under
seven years of age. In any event, as is apparent, this matter was considered
and has been considered since by the respondent as appears from the letter. In
those circumstances the decision must be as I have indicated.
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