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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Efenure, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3072 (Admin) (16 October 2013) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2013/3072.html Cite as: [2013] EWHC 3072 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
Sitting as a Deputy Judge of the High Court
____________________
The Queen on the application of EJOVI LAWRENCE EFENURE |
Claimant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Duncan Lewis
) for the Claimant
Mr John Jolliffe (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 3 October 2013
____________________
Crown Copyright ©
Prof. Elizabeth Cooke :
The facts
The issues
i) Was the defendant's decision to treat him as an illegal entrant unlawful?
ii) Was his detention on 29 January 2012 unlawful? If not, did it later become unlawful?
iii) Was the defendant's decision to certify his human rights claim unlawful?
iv) Was the decision to cancel his student leave flawed by the failure to give him notice of his appeal rights pursuant to the Immigration (Notices) Regulations 2003 and, if so, what was the effect of that?
The decision to treat the claimant as an illegal entrant
Irrationality
"Undertake a thorough interview under caution to establish illegal entry by deception to a high degree of probability. It is vital that the interview is well-structured and planned, asking appropriate questions to gather all the facts before confronting the person with any discrepancies." (Enforcement Instructions and Guidance, para 3.11; emphasis in the original)."
"Q 4.1 What was your reason for coming to the UK?
A: To study.
Q4.2 Can you BRIEFLY explain why you cannot return to your home country?
A: My main concern is career prospects are very minimal. Studying software engineering.
Q 4.2 continued: Did you know the career prospects were bleak in Nigeria before leaving Nigeria?
A: I changed my course to software engineering, I was looking for work and was self-employed and working from home, home was the family home and did this for 5 years."
"Q: When you applied for your visa did you know you were not going to return to Nigeria?
A: No
Q: When did you decide that you would not return to Nigeria?
A: the reason I changed my course was based on career prospects.
Q: You have not visited your family in Nigeria since arriving in the UK. Why?
A: I was not financial buoyant to visit my family.
Q: So if you were not financially buoyant how would you return now?
A: My expectation was to get some part time work in the UK. I have a brother in the UK, but I cannot expect him to support me.
Q: What are your further problems?
A: My submission date was moved from September to January.
Q: But your visa expires in January?
A: But at the end of student visas students are given an extra [ ] months leave for further work if required but I will not m[ ] the points based system, based on funds.
Q: When you applied for our visa was it your intention to start [a] new life in the UK?
A: Yes to study and to apply for study work, but the current situation I am, in I will not be able to meet the financial requirements.
Q: Did you tell the interviewing officer?
A: I was not interviewed until I got to London.
Q: When interviewed in London did you tell the immigration officer it was your intention to start a [new] life in the UK?
A: No.
Q: The immigration offer ask [ ] me what had I been doing?
A; My intention was to study and work afterwards. I felt I wasn't getting anywhere in Nigeria I had spent to[o] much time in Nigeria and thought maybe UK was a place for me."
"Subject was interviewed under caution and admitted that he could not have returned to Nigeria if he has been refused entry to the UK.
Subject admitted that it was his intention to come to the UK as he had no family life, wife or children in Nigeria and at his age he could not obtain a good career in Nigeria so came to the UK to study and build a new life.
Based on this information the subject has employed verbal deception at both the Entry clearance stage and the Immigration control stage."
"Question 4.2 when she said did you know the career prospects in Nigeria were bleak before leaving Nigeria, the way it is stated it appears confusing. It gives the wrong impression. I think the question doesn't relate to my present but pr (sic) my past.
I think the answer to that question is yes, the question relates to leaving before Nigeria."
" you withheld material information from the entry clearance officer when you made your visa application and from the immigration officer, on arrival in the UK regarding your intention of staying in the UK permanently. As a result of this deception of yours, your student visa was invalidated and you were served with an IS151A. Do you understand what I have just explained to you".
"So what I had in mind was obviously I don't have any strong reasons to claim asylum. But my case will be considered first of all for refugee status then if not qualified given the reasons. Then I will be considered on grounds of humanitarian protection. Then if not under that I will be considered under grounds of any other reasons to stay".
Procedural flaws in the decision of 29 January 2012
"You are specifically considered a person who has breached section 10 of the Immigration act (sic) by obtaining leave to remain by deception as you failed to be open and candid in your entry clearance application and failed to be candid when encountered at Immigration Control when entering the UK". (emphasis added)
The decision to detain
"You have previously failed to comply with conditions of your stay, temporary admission or release.
You have not provided satisfactory evidence of your identity, nationality or lawful basis to remain in the UK.
You have previously failed or refused to leave the United Kingdom when required to do so.
You do not have enough close ties to make it likely that you will stay in one place.
Your asylum claim has been refused and certified as clearly unfounded, and your Judicial Review application is expected to be expedited."
The s.94 certification
The review sought
"If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that the court can consider whether her conclusion was rational other than by asking itself the same question that she has considered." (Lord Philips of Worth Matravers at [23])
" on an application for judicial review of the Secretary of State's decision to certify, the court is exercising a supervisory jurisdiction, although one involving such careful scrutiny as is called for where an irrevocable step, potentially involving a breach of fundamental human rights, is in contemplation.
In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on article 8, these questions are likely to be:
(i) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(ii) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(iii) If so, is such interference in accordance with the law?
(iv) If so, is such interference 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?
(v) If so, is such interference proportionate to the legitimate public end sought to be achieved?"
The refusal letter
(i) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(ii) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(iii) If so, is such interference in accordance with the law?
(iv) If so, is such interference 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?
(v) If so, is such interference proportionate to the legitimate public end sought to be achieved?
" people who have been admitted on a course of study at a recognised UK institution for higher education are likely to build up a relevant connection with the course, the institution, an educational sequence for the ultimate professional qualification sought, as well as social ties during the period of study. Cumulatively this may amount to private life that deserves respect because the person has been admitted for this purpose, the purpose remains unfilled, and discretionary factors such as misrepresentation or criminal conduct have not provided grounds for refusal of extension or curtailment of stay."
The Immigration (Notices) Regulations 2003
Conclusion