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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 >> Reid, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 1772 (Admin) (16 May 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/1772.html Cite as: [2014] EWHC 1772 (Admin)

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

		Birmingham Civil Justice Centre
		16th May 2014

His Honour Judge Mark Rogers :

1. At the conclusion of the oral argument I dismissed this application for Judicial Review but reserved my reasons. These are they.
2. The Claimant is Mr Alrando Reid and he challenges the decision of the Secretary of State for the Home Department on 5^th May 2011 to certify his case under section 96 of the Nationality, Immigration and Asylum Act 2002 in the context of her principal decision to refuse to revoke a Deportation Order.
3. This case which was begun promptly in 2011 has had a tortuous procedural journey, although the difficulties are not now relevant. It is sufficient to record that the case started life more broadly drawn but ultimately was argued on the single narrow ground identified.
4. The Order of His Honour Judge Cooke of 13^th September 2012, made after his consideration of the papers, limited the permission granted to the question of "whether the Defendant was entitled to certify her decision…………….". The hearing before me has therefore proceeded upon that same narrow basis.
5. I am most grateful to counsel, Miss Emma Rutherford, for the Claimant, and Miss Naomi Candlin, for the Defendant, for their succinct and clear submissions, written and oral.
6. There is little or no dispute as to the factual background and there is a useful chronology within the Detailed Grounds of Defence which I need not repeat. There is also a very substantial account of and analysis of the facts in the Decision of Immigration Judge Pirotta of 24^th August 2010 when this matter was first considered in the First-tier Tribunal. Accordingly, the briefest summary by me will suffice.
7. The Claimant was born in 1975 and is Jamaican. He entered the United Kingdom in 2001and was granted Leave to Enter for two weeks. He married and submitted an application for Leave to Remain. That marriage failed but the Claimant now has a relationship with his unmarried partner.
8. He has two childen in the UK, Alrando Junior (12) and Daniel (6), one child from each relationship. A daughter who previously lived in Jamaica is dead.
9. The Claimant has an extensive and well documented criminal history of serious offending in the UK, culminating with a sentence of 3 years in the Birmingham Crown Court on 1^st May 2009.
10. That sentence rendered the Claimant liable to deportation and set in train the protracted proceedings with which I am now dealing. Representations were made, the Secretary of State made a decision to deport, the First-tier Tribunal dismissed the Claimant's appeal, the Upper Tribunal refused permission to appeal, a Deportation Order was made with Removal Directions, further representations were made, Interim Relief was sought and refused by Mr Justice Blake, Removal Directions were cancelled pending an application for permission to appeal, the Secretary of State agreed to reconsider the matter and finally the decision letter of 5^th May 2011, the matter now under review, was issued.
11. The decision letter runs to 8 pages and 41 paragraphs and is extremely detailed. Given the complex factual background, the passage of time and the various submissions made it was necessarily full and, in my judgment, correctly identified the different areas raised within the representations which required specific consideration.
12. The document, which I do not propose to reproduce in this Judgment, because of its length, repays reading and rereading because it is impressive and comprehensive. It draws together the strands of available factual material (most significantly the Decision of the First-tier Tribunal), identifies the correct principles for application and comes to robust and supportable conclusions. There can be no realistic challenge to the substance of the decision and, in my Judgment, it is no surprise that His Honour Judge Cooke limited the Grant of Permission in the way he did.
13. Counsel are agreed as to the statutory framework. The decision is governed by an application of section 96 of the 2002 Act. Its effect is to curtail the ability of an individual to bring an appeal against an immigration decision in prescribed circumstances. Miss Rutherford has set out the section in full in her Skeleton. Both Counsel also make reference to the decision of Mr Justice Stadlen in R (on the application of J) v The Secretary of State for the Home Department, [2009] EWHC 705 Admin It is a wide ranging Judgment of conspicuous scholarship, but for the narrow purposes of this case it helpfully and concisely identifies (at paragraph 106) the four stage process required before a Certification can be regarded as lawful. The first three stages mirror the language of the Statute and the fourth is the requirement for comprehensive regard to be had to all relevant circumstances to ensure that the questions of whether and, if so, how to exercise the discretion are properly considered.
14. Both Counsel refer to the four stage approach in support of their submissions. The most obvious hurdle facing Miss Rutherford is the terms of the decision letter itself. In terms the decision maker reminds herself of the test set out in section 96 and explained in J. She then explicitly analyses the four stages by reference to the evidence. That notwithstanding, Miss Rutherford submits that as a result of substantial developments or changes in the law between August 2010 and May 2011, there are significant matters which the Claimant could not have relied upon earlier and therefore the Secretary of State's assertion that he should have is wrong and irrational and renders her decision unlawful.
15. The essence of Miss Rutherford's submission is that section 96 (1) (b) and (c) is engaged and that it is impossible to certify, I paraphrase, that the material relied upon by the Claimant could have been relied upon before the Tribunal and there is no satisfactory reason why it was not.
16. In paragraph 10 of her Skeleton Miss Rutherford identifies what she contends are three crucial areas of jurisprudential development since the Tribunal decision namely, the case in the European Court of Justice of Ruiz Zambrano v ONEm [2011] EUECJ c-34/09, the approach to section 55 of the Borders, Citizenship and Immigration Act 2009 and Article 8 of the Convention in particular as it relates to children. In paragraph 13 she sets out quite correctly the chronological developments of case and statute law.
17. Those points, though powerfully made, are not, in my judgment sufficient. The law is constantly developing and for section 96 to have any sensible application it is not enough merely to assert legal development, whether incremental or radical. In my judgment, the Secretary of State has to look at the facts before her and take account of the substantive position in her approach to the statutory test.
18. Miss Candlin points out the factual distinction to be drawn between Zambrano and this case. Here the Claimant's links with his children have been found to be tenuous and the Tribunal was critical of his evidence which lacked credibility on the issue of the closeness of the connection. Zambrano significantly concerns dependent children.
19. In refusing interim relief on 24^th March 2011, Mr Justice Blake observed the important distinction which arises from the fact that Zambrano does not concern the public policy consideration of criminal conduct.
20. Thus, whilst chronologically Zambrano postdates the Tribunal decision and so ipso facto the Claimant could not have relied upon it, that does not, in my judgment, assist him as it does not impact upon the true factual position on the ground which was fully considered and did not materially change.
21. In relation to the statutory and Convention points, Miss Rutherford is, in my judgment, on even weaker ground. The position of the Claimant and his children were considered in depth in the Tribunal judgment, both generally and in their legal context. Those considerations were taken up in the decision letter and were properly adopted and reviewed. Again, Miss Rutherford rightly identifies authorities on point which postdate the appeal, but she fails to demonstrate to my satisfaction any error of approach on the part of the Secretary of State. In my judgment, she was entitled to take the approach which she did to the issue of certification.
22. Miss Candlin makes a further crucial point of substance in relation to the application of current Immigration Rules. She therefore asserts that even if the earlier decision was irrational or flawed, that would be a pyrrhic and academic victory for the Claimant who would have no prospect of success if the matter were reconsidered as all material factors have been taken account of and there would be no exceptional circumstances to take this case outside of the Rules.
23. Miss Rutherford acknowledges the point against her client realistically but does not concede it. She argues that, in particular in relation to Article 8, his case should be revisited.
24. Had I not been satisfied with the Certification, I have to say that I regard Miss Candlin's alternative point on the Rules as well made and I would have regarded any default as academic so that no relief would have been justified.
25. Accordingly, I refuse the Claimant's application for Judicial Review. The stay preventing removal will be lifted and the Secretary of State may take steps to deport him.
26. I did not hear Counsel on the issue of costs but my view is that the Claimant should pay the Defendant's costs to be assessed if not agreed. If either party wishes to be heard on costs, notice should be given within 14 days and I will deal with the matter on paper no earlier than 28 days after Judgment, taking account of any written submissions either party chooses to submit electronically. If notice is not given then the Order for costs will be as I have indicated.
16th May 2014