Mr Justice Harrison:
- This is an application for judicial review of a decision by the defendant to certify the claimant's allegation of breach of her Article 8 rights under the European Convention of Human Rights ("ECHR") as being manifestly unfounded pursuant to section 72(2)(a) of the Immigration and Asylum Act 1999 ("the 1999 Act"). The defendant so certified on 17 September 2002. That is, therefore, technically the decision to which this application relates but, following consideration of further matters in the intervening period, the defendant subsequently confirmed the decision in a comprehensive letter dated 2 October 2003. That latter decision is, therefore, also a relevant decision to be considered in this case.
- The claimant is a Somali national whose identity and date of birth are matters of dispute. According to documents in the defendant's possession, the claimant is Sadia Mohamed Hassan born on 13 February 1980. According to the claimant, she is Sadia Abdulkadir A born on 13 October 1984. She left Somalia in 1998 and, after spending a short time in Kenya, arrived in Italy where she remained for 3½ years between 1998 and 2001, after which she came to the United Kingdom on 9 December 2001, seeking leave to enter as a visitor. She applied for asylum on 12 December 2001 on the basis of membership of a minority clan in Somalia called the Benadirs. Her mother, Rama Ahmed Barakow, had arrived in the United Kingdom on 29 March 1999 and had been granted indefinite leave to enter as a refugee on 28 June 2000 on the basis of her membership of that minority clan. When she arrived, she gave the name of her husband as Abdulkadir A Mohamed and she listed seven children, the second oldest daughter being Sadiya Abdulqadir A born in 1984.
- On 10 January 2002 the claimant made a human rights claim to remain in the United Kingdom, inter alia, under Article 8 of the ECHR based on her mother and her younger sister being resident here. On 17 January 2002 the claimant was granted bail by an immigration adjudicator who considered statements by two witnesses, A Shire Jama and Saciido Elmi Hassan, purporting to corroborate the mother's account of the claimant's identity and age. On 21 January 2002 the claimant's solicitors requested confirmation that she would be admitted as the dependent minor child of a settled refugee. On 24 January 2002 the defendant declined to give that confirmation on the ground that the documents in his possession showed that the claimant's date of birth was 13 February 1980, not 13 October 1984 as claimed, so she would no longer be a minor.
- On 15 April 2002 the claimant's solicitors sent to the defendant the documents, including the two witness's statements previously mentioned, used in connection with the claimant's bail application, suggesting that they corroborated her date of birth as being 13 October 1984 so that she would, at that time, still be under the age of 18, and requesting that she be granted leave to remain as a refugee like her mother. On 23 April 2002 the defendant stated in reply:-
"The Secretary of State has considered the statements that you have submitted on your client's behalf, however he is not satisfied that this gives conclusive proof of your client's age. The Secretary of State is aware that your client was issued with an Italian residence permit and an Italian identity card, which clearly state that her date of birth is 13 February 1980. The Secretary of State also notes that the same date of birth is recorded on your client's passport and on a letter written by your client's employer in support of a visa application. In light of the above the Secretary of State does not accept that your client is a minor."
- On 13 August 2002 the defendant certified the claimant's asylum claim under section 11(2)(a) of the 1999 Act on the ground that the claimant was properly returnable to Italy who had accepted responsibility to deal with her asylum claim pursuant to the Dublin Convention.
- By letters dated 13 and 17 September 2002 the claimant made a human rights appeal under section 65 of the 1999 Act alleging that her removal to Italy would be in breach of Article 8 of the ECHR.
- By letter dated 17 September 2002 the defendant certified the allegation of a breach of the claimant's human rights under the ECHR as being manifestly unfounded in accordance with section 72(2) of the 1999 Act. In dealing with her Article 8 claim the defendant stated:-
"You allege that your client's removal to Italy would constitute a breach of her human rights under Article 8 of the ECHR, as her mother is presently resident in the United Kingdom. The question for the Secretary of State is whether the undoubted interference with your client's right to respect for her family life, if she were returned to Italy, would be proportionate and commensurate when balanced against his legitimate concerns in the public interest to maintain a credible and effective immigration control to the United Kingdom, and to deter abuse of the asylum system. The Secretary of State takes the view that it will be open to your client to apply at a British Consulate or Embassy in Italy for the appropriate entry clearance to enable her to return lawfully to the United Kingdom to resume her family life."
- On 13 October 2002 the claimant became 18 if, as she claims, she is Sadia Abdulkadir A born on 13 October 1984. On her case, therefore, she was no longer a minor by that date and so the defendant's safe third country family links policy would no longer apply to her. Under that policy, which originated in March 1991 and was re-iterated in July 2002, potential safe third country cases would normally have their asylum claims considered substantively in the United Kingdom if the applicant is an unmarried minor and a parent is in the United Kingdom.
- On 2 October 2003 the defendant wrote an eight page letter to the claimant's solicitors setting out in considerable detail the history of the alleged lies told by her since she came to this country. It will be necessary to summarise that aspect of the matter in due course but, for present purposes, it is sufficient simply to refer to the defendant's conclusions set out in paragraphs 37 to 42 of that letter in which he stated:-
"37. On the totality of the evidence before him, the Secretary of State remains confident that he was entitled to reach the conclusion that your client's human rights appeal under section 65 of the Immigration and Asylum Act 1999 was bound to fail. Your client is not credible and she cannot establish that removal would infringe her human rights under Article 8. She has given a number of conflicting accounts and she cannot reasonably be believed. She has admitted that her family told her to lie to the Immigration Service and, as a result of this readiness to employ lies and deceit in the furtherance of their ends, they cannot be believed.
38. Contrary to the various assertions and statements from your client and her family, whose credibility has been wholly undermined, the Secretary of State is satisfied that he may continue to rely upon the objective evidence before him. This evidence, provided by the Italian authorities and provided by your client to the British Embassy in Rome, establishes incontrovertibly that your client was living openly and lawfully and working regularly in Italy for over three years with official permission to remain there. The photographs, the videotapes and the visa applications demonstrate that she was able to exercise free will there.
39. Even if your client could be believed about being a minor, which he does not accept, the Secretary of State was entitled to conclude that there would be no arguable breach of Article 8 to return her to Italy, and no Adjudicator could regard his conclusion as unlawful.
40. Your client was obviously able to live safely in Italy. It is inconceivable that an Adjudicator could believe the story of forced child labour and prostitution.
41. Your client had not enjoyed family life with her "mother" for a very long time, on her own account since 1997. In any event, her "mother" and uncle, as recognised refugees in the UK were and are able to visit her in Italy.
42. Any interference with her family life as could be shown by your client is plainly justified. The Secretary of State is entitled to regard the maintenance of a firm and consistent policy of immigration control as of great importance. Your client was able to live independently in Italy and wishes to live in the United Kingdom instead because her "mother" is now settled here. She should have made an honest application for a visa. She has no other claim to be here. Instead she has told a series of falsehoods in order to circumvent immigration control and now wishes to take advantage of her presence here. It is inimical to proper immigration control if those who dishonestly evade the proper controls are allowed to benefit from that evasion."
- Shortly after receipt of that letter the claimant's solicitors served on the defendant the result of a DNA test which confirmed that Rama Ahmed Barakow is the claimant's mother.
- Following receipt of that information, the defendant replied on 5 November 2003 maintaining his position that the claimant was able to live and work in Italy and that, if she wanted to join her mother in the United Kingdom, she could and should have made an honest application for entry clearance and not have employed a series of falsehoods to try and circumvent immigration control. It was asserted that any interference with her family life that she has re-established with her mother since her unlawful facilitation to the United Kingdom was plainly justified in the interests of a firm and consistent immigration control, and that those who dishonestly evade the proper controls can have no legitimate expectation of being permitted to benefit from it to the disadvantage of those who comply with the requirements of immigration control.
- Following the claimant's arrival in the United Kingdom, enquiries made by the immigration service revealed that she had travelled in a plane from Rome to Birmingham on 9 December 2001 sitting next to her uncle who had bought the tickets. On arrival, she had hung back and did not present herself at immigration control until some time after her uncle who had in fact been detained. She was not in possession of any documents although she had a valid passport, travel document and Italian residence permit in the name of Sadia Mohamed Hassan, together with the ticket her uncle had bought, when she embarked at Rome. She gave the name of Sadia Abdulkidir A to immigration control at Birmingham Airport.
- Her uncle, Mohammed Ahmed Barakow, was found to have a number of documents in his possession, some of which were in the name of Sadia Mohamed Hassan, as well as a number of photographs of her and some video tapes showing her on holiday in Venice and at a celebration in Pescara in 2001. When he was interviewed, he agreed that he had gone to bring the claimant back to the United Kingdom and that he was aware that she did not qualify for entry because she did not have the appropriate visa. Enquiries of the Italian authorities showed that the claimant was known to them as Sadia Mohamed Hassan born on 13 February 1980. She had entered Italy on 9 February 1998 and had been granted a residence permit in May 1998 which had subsequently been extended to May 2005. She had permission to work as a domestic.
- Enquiries of the entry clearance officer in Rome showed that she had made three visa applications in the Hassan name to travel to the United Kingdom in August 2000, October 2000 and February 2001, although each application had subsequently been withdrawn. The documents used to support those visa applications were a Somali passport issued to her in Rome in March 1998 in the Hassan name with a date of birth of 13 February 1980, an employment record showing she had been working in Pescara since 1998, another document confirming the name of her employer and a "Titre de Voyage" giving her Hassan name and date of birth as 13 February 1980.
- When interviewed at Birmingham Airport, the claimant said that she had flown direct from Nairobi to Birmingham although there is not such a direct flight.
- When she was interviewed more fully on 6 January 2002 she said that she had been in Somalia in 1998 and had subsequently spent one and a half years in Nairobi and had then been in Italy for two weeks before coming to the United Kingdom. She said that she had never worked and that she had never held a passport, although she agreed that her photograph was on the copy passport shown to her. She said she had never held an identification card and she denied ever having applied for a visa. When shown a copy of a visa application made by her, she agreed that it contained a photograph of her and thought that somebody must have signed it for her. Similarly, she denied that the Italian residence document in her name was hers although she agreed that it had a photograph of her on it. She said that she had used documents provided by a lady called Halima who pretended that she was her daughter. She denied that her uncle had brought her to the United Kingdom or that she had travelled with him. She said she happened to meet him at the airport and he offered to carry her bag. She had not come through immigration control with him because she was not feeling very well and had gone to the toilet without telling him that she was unwell.
- After an interval, her solicitors asked for her to be further questioned. On this occasion she said that the residence permit was hers. She had lied because she had been attacked on three occasions by some Italian youths who had tried to rape her and she had reported it to the police. She then claimed to have arrived in Italy in the year 2000. When it was pointed out that her residence permit was granted in 1999, she said she was still in Somalia at that time. She insisted that her real name was Sadia Abdulkadir A and that her sister was one year older than her, although she had said in the previous interview that she was the oldest daughter.
- The claimant's account changed yet again when she made a witness statement in these proceedings on 21 November 2002. She said that Halima obtained her Somali passport and her Italian residence documentation for her, and she had also taken her on three occasions to the British Embassy to help her fill in her visa applications. She agreed that the story she gave to the entry clearance officer was untrue. She did not even know that her mother was in the United Kingdom at that time and she did not know why Halima was trying to send her to the United Kingdom. She said that Halima had made her work for an Italian lady for about three years, keeping most of her wages, and had forced her into prostitution. Finally, she said that she had not told the truth in her interview on 6 November 2002 because she had been told what to say by her family.
- In fact, a note by the entry clearance officer showed that, when she applied for her visa in October 2000, she had come in person. She had also said that she wished to go to the United Kingdom to her aunt's wedding. In her very recent statement dated 18 November 2003, the claimant said that she did not know that her mother was in the United Kingdom when she made the three visa applications. It had been Halima's decision that she should make the applications although she didn't know why. She said that Halima controlled her life and forced her into prostitution.
- The photographs which were found in her uncle's luggage were included amongst the documents produced by the defendant in these proceedings. According to the defendant, they showed her to be a happy carefree young lady with friends in Italy over a period of time. The claimant said in a subsequent statement that Halima had made her look happy so that she could show them to the men using her as a prostitute. Having seen the photographs, I am inclined to agree with the defendant. Indeed, the account of her being forced into prostitution was not mentioned by her at all during her interview on 6 January 2002.
- The only other evidence to which I need to refer are the statements of A Shire Jama and Saciido Elmi Hassan.
- Dealing first with A Jama, the evidence from his statements is that he was employed by the Ministry of Health in Somalia from 1976 to 1988. He came to the United Kingdom in 1988 and was naturalised as a British Citizen in 2001. He knew the claimant's mother, Rama, and also Saciido Hassan, in Somalia because they were both midwives there. In fact, Rama had delivered his eldest daughter who was born on 10 February 1984, and he is sure that Sadia had not been born by that time. His knowledge came from his contact with Sadia in Somalia and his recollection of the children that her mother had at various stages of contact with him. He had subsequently bumped into a mutual friend in this country and thereafter had made contact with Rama again.
- Saciido Hassan has indefinite leave to remain in the United Kingdom as a refugee. The evidence from her statements is that she delivered Sadia as a midwife in 1984. She knows it was 1984 because her sister was getting married the next day and Rama was not able to come to the wedding because she had just given birth. She saw Sadia many times after she was born in Somalia. She has also met Sadia since she arrived in the United Kingdom from Italy and she confirmed that she is definitely Rama's daughter.
- Two conclusions can be drawn from the factual background of this case. Firstly, the claimant entered this country by deception and thereafter told a pack of lies and gave a number of different accounts. Secondly, there is a dispute as to her correct identity and age although it is now accepted that she is the daughter of Rama Barakow.
- The core issue to be decided in this case is whether the defendant was entitled to certify the claimant's allegation of a breach of Article 8 as being manifestly unfounded pursuant to section 72(2)(a) of the 1999 Act which provides:-
"72 (1)……
(2) A person who has been, or is to be, sent to a member State….is not, while he is in the United Kingdom, entitled to appeal -
(a) under section 65 if the Secretary of State certifies that his allegation that a person acted in breach of his human rights is manifestly unfounded."
- In other words, the issue is whether the defendant was entitled rationally to conclude that no adjudicator could find that there was a breach of Article 8. The test to be applied is whether the claimant's allegation of a breach of Article 8 is bound to fail (see The Queen on the application of Razgar v Secretary of State for the Home Department [2003] EWCA Civ 840 per Dyson LJ at para 112). As has been said, that is a very high threshold.
- Article 8 of the ECHR provides as follows:-
"1. Everyone has a right to respect for his private and family life, and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
- The defendant has given two reasons for concluding that the claimant's human rights claim is manifestly unfounded. Firstly, it is said that no adjudicator could believe her account as to her age and identity. Secondly, it is said that, even if an adjudicator did believe her account as to her age and identity, he could not find that there was a breach of Article 8 if she were returned to Italy. In either case, it is said, the claimant's allegation of a breach of Article 8 was bound to fail.
- It is right to say that, since the DNA evidence came to light, the defendant has placed more emphasis on the second, rather than the first, reason. I do not find that surprising because, although the claimant has told a series of falsehoods to circumvent immigration control, there is some evidence which lends some support to her claim on the issue of her age and identity, namely the DNA evidence, which shows that Rama Barakow is her mother, and the statements of A Jama and Saciido Hassan which suggest that Rama Barakow gave birth to a daughter called Sadia in 1984. Also, when she arrived in this country in 1999, Rama Barakow gave the name of her second daughter as Sadiya Abdulqadir A born in 1984. Of course, that does not in itself prove that the claimant is the daughter Sadia to which that evidence relates. It must also be borne in mind that A Jama and Saciido Hassan are friends of the family and that the claimant has admitted in her witness statement in these proceedings that her family, in effect, told her to tell lies in her interview.
- Whilst an adjudicator would, in my view, be bound to disbelieve the claimant's latest account of being forced into prostitution in Italy as being incredible, I do not consider that the Secretary of State could reasonably conclude that an adjudicator would be bound to disbelieve her account of her age and identity. There is a factual dispute on that issue such that it cannot be said at this stage that the claimant was bound to fail because an adjudicator was bound to disbelieve her on that issue.
- I turn then to the second reason given by the defendant for concluding that the claim was manifestly unfounded, namely that, even if an adjudicator did believe her account as to her age and identity, he would still have been bound to conclude that there was no breach of Article 8 in returning the claimant to Italy. Put shortly, the defendant accepts that there would be an interference with the claimant's family life under Article 8(1) if she were returned to Italy, but it is submitted that it is plainly necessary and proportionate to return her in the interests of maintaining a firm and effective system of immigration control, and that any adjudicator would be bound to conclude that the interference with her family life was justified under Article 8(2). The defendant's position is that the claimant should have made an honest application for entrance clearance before leaving Italy.
- Ms Naik pointed out on behalf of the claimant that the claimant does not have identification documents in the name of Sadia Abdulkadir A with which to make such an application in Italy and that the defendant is obliged to consider that obstacle. Also, she submitted that the defendant has not taken account of the claimant's emotional relationship with her mother, the fact that they became separated because of the civil war in Somalia, that she had been living as a minor without either of her parents in Italy, that she has now been living with her mother in this country for two years and that she has no family or relatives in Italy.
- Ms Naik also contended that the defendant, when certifying the Article 8 claim, had failed to take account of the defendant's safe third country family links policy and the fact she was a member of a minority clan who would qualify for asylum as a refugee.
- Ms Naik placed considerable reliance on the decision of the Court of Appeal in The Queen on the application of Nadarajah v Secretaryof State for the Home Department [2003] EWCA Civ 840. That was a case where the Secretary of State had certified the appellant's asylum claim on safe third country grounds and had certified his human rights claim under section 72(2)(a) of the 1999 Act. He was a Tamil from Sri Lanka whose asylum claim had previously been rejected in Germany. His wife had entered the United Kingdom in August 2001 and claimed asylum which had been refused. An adjudicator dismissed her appeal on the ground that no objective risk of ill-treatment had been shown but, in doing so, she found that the heart of the wife's story was credible although part of that narrative had been rejected by the Secretary of State when certifying the appellant's human rights claim as being manifestly unfounded. The Court of Appeal concluded that it was not a case where Article 8(2) was bound to trump the appellant's claim that his removal to Germany would interfere with his right to family life because it was a case where an adjudicator might conclude that his view of the facts was so different from that which informed the decision of the Secretary of State as substantially to undermine the basis on which he performed the Article 8 exercise. The Court did not consider, on the facts of that case, that an appeal was bound to fail. Ms Naik made the point that, in that case, neither the appellant or his wife had any status in the United Kingdom whereas in this case the claimant's mother does have refugee status.
- Whilst I note the decision in Nadarajah, I am very conscious that these kind of cases are very fact sensitive and there are certainly important factual differences between that case and the present case.
- In the case of Razgar, which was considered at the same time as Nadarajah, the Court of Appeal dealt with the position where an adjudicator might differ on the facts from those found by the Secretary of State. That is relevant to this case because the second reason given by the defendant for certifying the Article 8 claim is predicated on the assumption that the adjudicator accepts the claimant's account as to her age and identity, although the defendant does not accept that account. In Razgar, Dyson LJ stated at paragraphs 41 and 42 as follows:-
"41. But even if the adjudicator were to conclude that the Secretary of State's analysis was wrong, it would not necessarily follow that the Secretary of State acted in breach of a claimant's ECHR rights in such a case. It would remain open to the adjudicator to decide that the conclusion reached by the Secretary of State was lawful (and did not breach the claimant's human rights) because it was in fact a proportionate response even on the factors as determined by the adjudicator.
42. Where the essential facts found by the adjudicator are so fundamentally different from those determined by the Secretary of State as to substantially undermine the factual basis of the balancing exercise performed by him, it may be impossible for the adjudicator to determine whether the decision is proportionate otherwise than by carrying out the balancing exercise himself. Even in such a case, when it comes to deciding how much weight to give to the policy of maintaining an effective immigration policy, the adjudicator should pay very considerable deference to the view of the Secretary of State as to the importance of maintaining such a policy. There is obviously a conceptual difference between (a) deciding whether the decision of the Secretary of State was within the range of reasonable responses and (b) deciding whether the decision was proportionate (paying deference to the Secretary of State as far as is possible). In the light of Blessing Edore, we would hold that the correct approach is (a) in all cases except where this is impossible because the factual basis of the decision of the Secretary of State has been substantially undermined by the findings of the adjudicator. Where (a) is impossible, then the correct approach is (b). But we doubt whether, in practice, the application of the two approaches will often lead to different outcomes."
- It seems to me, therefore, when considering this reason given by the defendant for certifying the human rights claim predicated on the assumption that the claimant's account as to her age and identity is correct, that I should probably consider whether the defendant's decision was proportionate, paying deference to the defendant so far as possible, rather than whether the defendant's decision was within the range of reasonable responses, although I doubt whether the outcome would be different in either case.
- Ms Naik placed considerable reliance on the alleged failure of the defendant to consider the safe third country family links policy, and on the suggestion that the claimant was bound to be accepted as a refugee. However, as Mr Underwood QC pointed out on behalf of the defendant, the safe third country family links policy deals with whether an asylum claim should be considered substantively in this country, but in this case the claimant's asylum claim has already been certified by the defendant on a safe third country basis under section 11 of the 1999 Act. It will therefore be dealt with in Italy, not in this country, there having been no judicial review challenge to the section 11 certification. The certification which is challenged in these proceedings is the certification of the human rights claim under section 72 of the Act. The only other avenue open to the claimant would have been an application for leave to enter under paragraph 352D of HC 395 as a child of a refugee. However, even though the claimant would probably have been able to satisfy all the other conditions of paragraph 352D, she would not have been able to satisfy condition (vi) which requires her to have obtained entry clearance.
- It is the failure of the claimant to obtain entry clearance, together with the series of falsehoods and dishonesty used to circumvent immigration control, that really lie at the heart of the defendant's case. Mr Underwood submitted that, if entry clearance is required, the defendant is entitled in the ordinary case to require the immigrant to go abroad and obtain it. It was, he said, fundamental that, where the Rules required entry clearance, they should not be evaded.
- Reliance was placed on R v Secretary of State for the Home Department, ex parte Mahmood [Court of Appeal, 8 December 2000] which was a case where an asylum seeker was trying to stay in this country on the basis of marriage. At paragraph 23 of his judgment, Laws LJ stated:-
"Firm immigration control requires consistency of treatment between one aspiring immigrant and another. If the established rule is to the effect - as it is - that a person seeking rights of residence here on grounds of marriage (not being someone who already enjoys a leave, albeit limited, to remain in the UK) must obtain an entry clearance in his country of origin, then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin."
At paragraph 26 Laws LJ went on to remark that it was simply unfair that the claimant should not have to wait in the queue like everybody else unless he can demonstrate some exceptional circumstance which reasonably justifies his jumping the queue.
- One case where exceptional circumstances were established was the case of Shala v Secretary of State for the Home Department [2003] EWCA CIV 233, which was relied upon by Ms Naik. That case, however, was very different to the present case. Indeed, Schiemann LJ described it in paragraph 24 of the judgment as distinguishable from the mass of cases because the claimant came here at a time when his failure to apply for a visa was accepted by the Home Office as wholly explicable and he applied for permission on the day he arrived from Kosovo which was in the middle of a dreadful civil war. Furthermore, the Home Office had delayed for four years before interviewing him. However, it is also to be noted that, in paragraph 13 of the judgment given by Keene LJ, he stated:-
" In short, therefore, in deciding whether or not the Secretary of State has struck the balance fairly between this appellant's right to respect for his family life and the proper maintenance of immigration control, this court will recognise that the Secretary of State is to be allowed a significant area of judgment. He is entitled to a significant margin of discretion before the court will conclude that he has gone wrong in the relative weight which he has attached to the conflicting interests."
- I must therefore bear in mind that, when assessing whether the defendant has fairly struck the balance between the claimant's right to respect for family life and the proper maintenance of immigration control, he is entitled to a significant margin of discretion, or considerable deference.
- I also bear in mind that it is relevant to take account of the message that would be sent out if the courts were to decide that the defendant was not entitled to conclude that an appeal to an adjudicator would be bound to fail. That was a matter referred to by the Lord Chief Justice in the case of YA v Secretary of State for the Home Department [2003] EWCA CIV 1012 which was another case involving a section 72 certification of a human rights claim. At paragraphs 29 and 30, the Lord Chief Justice stated:-
"29. In my judgment, where there is a sequence of events, such as occurred here, which involve deliberately seeking to undermine the asylum regulation provisions within this jurisdiction it is the Secretary of State's entitlement to say to the court in weighing the balance between the interests of the children and the interests of the public weight has to be given to the consequences that would flow from the family being given the right to appeal in this jurisdiction.
30. The problems with which the Government are faced in trying to give effect to their policy in relation to asylum are well known. It is not unreasonable, as Mr Underwood QC submits, to say that if the court were to interfere with the grant of the certificate in this case, this would result in other children, in the position of these children, being faced with the same disruption with which these children have been faced in consequence of the actions which were taken by their parents. It is therefore appropriate, in my view, in finding where the balance lies, to take into account the message that would be sent out if the courts were to decide that the Secretary of State was not entitled to conclude that an appeal to an adjudicator would be bound to fail."
- In the case of The Queen on the application of Ekinci v Secretary of State for the Home Department [2003] EWCA CIV 765 it was held by the Court of Appeal that, when certifying a human rights claim as manifestly unfounded under section 72, it was immaterial that the claimant was likely to fail to qualify for entry clearance if returned. That is something that should be decided when the claimant came to apply for it. As Simon Brown LJ stated at paragraph 16, it would be bizarre and unsatisfactory if, the less able the claimant is to satisfy the full requirements of entry clearance, the more readily he should be excused the need to apply. That point is relevant when considering Ms Naik's point that, on return, the claimant would not have valid identification papers in her name (as alleged by her), the implication being that she would not be granted entry clearance. That is a matter which would be considered if and when the claimant applied for entry clearance.
- In considering this matter, I attach importance to the undoubted deception that was practised by the claimant to gain entry to this country when what she should have done was to apply for entry clearance. The fact that she would not have had identification documentation for what she says is her correct identification is of her own making. She has told a pack of lies to circumvent immigration control and she has therefore engineered the very basis of her claim, the right to respect for family life, by so gaining entry to this country. It would, in my view, be sending out the wrong message if the court were not to uphold the certificate under section 72 unless it could be shown that there were exceptional circumstances to justify a contrary conclusion. I do not consider that there are such exceptional circumstances in this case, even assuming that the claimant is who she says she is.
- This is not an Article 2 or Article 3 case involving the right to life or torture or inhuman and degrading treatment. It is an Article 8 case involving the right to respect for family life. As Dyson LJ stated in Samaroo v Secretary of State for the Home Department [2001] EWCA CIV 1139 at paragraph 36, the right to respect for family life is not regarded as a right which requires a high degree of constitutional protection. The claimant has only lived with her mother for two years since coming to this country in December 2001, having previously not lived with her since 1997, albeit that that was due to family dispersal arising from civil war in Somalia. She lived in Italy for 3½ years, coming to this country, on her account, when she was 17. She is now, on her account, 19 and no longer a minor dependent child. She would not have family living with her in Italy but she could be visited and supported by her mother and uncle.
- When balancing such interference with the claimant's family life against the need for a firm and effective immigration policy and the need not to send out the wrong message by, in effect, rewarding the deception practised by the claimant by allowing her to benefit from it, and bearing in mind the considerable deference to be afforded to the defendant on that aspect of the matter, I consider that the defendant was entitled to conclude, even accepting the claimant's account of her age and identity to be correct, that no adjudicator would hold that there had been a breach of Article 8. In my view, the defendant's decision was both within the range of reasonable responses and it was proportionate. Taking into account the matters I have mentioned, he was entitled to conclude that an appeal to an adjudicator on the human rights claim was bound to fail. This is a case which, in my judgment, crosses the high threshold and which entitled the defendant to certify the claimant's human rights claim as manifestly unfounded pursuant to section 72(2)(a) of the 1999 Act.
- I would therefore dismiss this application.
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MR JUSTICE HARRISON: For the reasons set out in the judgment that has been handed down this application is dismissed.
MR BEARD: I am most grateful, my Lord. The Secretary of State understands that the claimant in this case is publicly funded, in which case the Secretary of State asks for the ordinary order to the effect that costs be awarded, but will only be enforced with the leave of the court.
MR JUSTICE HARRISON: Yes, there is a form of wording now.
MR BEARD: I am sorry, I do not have it.
MR JUSTICE HARRISON: Then the order will be made in the usual form.
MR BEARD: I am most grateful, my Lord.
MR JUSTICE HARRISON: Thank you very much.
MR JORRO: My Lord, thank you for that indication. My Lord, I have an application to make on behalf of the claimant, which is an application for permission to appeal to the Court of Appeal against your Lordship's judgment.
MR JUSTICE HARRISON: Yes.
MR JORRO: My Lord, there are two points and they relate to paragraphs 38 and then to 39 of your Lordship's judgment. The first point, in relation to paragraph 38, is this
MR JUSTICE HARRISON: Yes.
MR JORRO: My Lord, it relates to the family policy. In your judgment, my Lord, you have agreed with the defendant's proposition that the family policy is relevant to the question of whether or not a section 11 certificate should be issued, and not then relevant to the question of the Article 8 claim being manifestly unfounded.
My Lord, my submission is this: that the family policy is specifically designed to ensure compliance with Article 8. That is its very purpose. On that basis, my Lord, I submit, respectfully, that it is not illogical to say that a policy, the very purpose of which is designed to ensure compliance with Article 8 obligations by the United Kingdom, can be considered to be irrelevant to the question of whether or not the claim by an individual that her Article 8 rights would be breached, is to be considered clearly unfounded. The very essence of the issue in the policy goes to this question of whether or not Article 8 is engaged.
On our submission, obviously, on your Lordship's finding, at least for the purposes of this judgment, the claimant was a minor who had a refugee mother in the country when she arrived here and claimed asylum. On that logic it was wrong, we say, for it to have been certified in the first place. Your Lordship says: well, that goes to a separate issue. My submission is: no, it does not. It goes to the issue which is at the heart of the policy, ie the United Kingdom's obligations under Article 8 of the Convention.
The point, as I understand it, has not been dealt with by the Court of Appeal. It was put aside, as it were, in the case of Nadarajah and it is a live point of general public importance. I would submit that it has a real prospect of success in this case. On that basis I would ask for permission to appeal.
My other submission is this: it relates to your Lordship's paragraph 39, which in turn sets out the Secretary of State's case. Basically the Secretary of State's case is that the claimant is a liar. She has come to this country and told a whole series of lies. On your Lordship's judgment she was a very young child indeed when she arrived in Italy, about 13 years old, and only 17 when she came here. That, I submit, has a relevance to this issue of her deceptiveness. It is different, and it is considered generally to be different, between a child telling lies, particularly when told to do so, from an adult doing so. There is an issue there.
So, my Lord, on both those points, relating, as I say, to paragraphs 38 and 39, I ask for permission to appeal to the Court of Appeal.
MR JUSTICE HARRISON: Thank you very much. Yes, Mr Beard?
MR BEARD: My Lord, the Secretary of State opposes the application for permission to appeal. This is not one of those cases where your Lordship should be granting such permission. It is a matter that, if the claimant wishes to pursue it, should be raised with their Lordships directly.
In relation to the paragraph 38 point, your Lordship has made crystal clear that the matter in relation to their policy relates to the section 11 certificate. That policy relates to whether or not the Secretary of State will exercise his discretion to consider an asylum application substantively. The Dublin Convention makes it possible that where someone has come from another Member State he does not have to do so. That certification was made pursuant to section 11 of the 1999 Act. No challenge was brought, as your Lordship has found. There is no possible ground of appeal that has any reasonable prospect of success in relation to that element.
Your Lordship, furthermore, has considered carefully the Secretary of State's analysis of Article 8, of both 8.1 and 8.2, and reached the conclusion that there is no infringement in the return of this person. The circumstances, therefore, mean that there again reference to the policy adds nothing.
As to the second point, your Lordship has made findings that there are doubts about the claimant's age and identity. Far from saying it was clear that she was in fact 13 or 17 at the relevant points, your Lordship has indicated the continuous pattern of deception recognised that in this case. Those are factual matters which your Lordship has reached conclusions on. Those are not matters either upon which there is any reasonable prospect of success, or, indeed, raise a legitimate point of law in this context, in any event.
In the circumstances, this is not a case where your Lordship should exercise his discretion to grant permission to appeal.
MR JUSTICE HARRISON: Thank you very much. Mr Jorro, anything further you want to say?
MR JORRO: My Lord, very briefly, on the first point only. There is a certain element begging the issue with respect to the Article 8 point, because our submission, of course, is that if your Lordship had considered that the policy was relevant to the Article 8 issue, then it would have been a different matter in terms of the consideration, because, of course, under the policy it is certainly arguable that the claimant would have qualified. She was a minor, her mother was a refugee.
MR JUSTICE HARRISON: Yes, I see. Thank you very much. Well, I am afraid, Mr Jorro, I am not prepared to grant permission to appeal. If you wish to take it further you will have to go to the Court of Appeal.
MR JORRO: Thank you, my Lord.
MR BEARD: I am most grateful.
MR JUSTICE HARRISON: Thank you both very much.
MR JORRO: My Lord, in case I need it, can an order for detailed assessment for that part of the
MR JUSTICE HARRISON: Yes
