Case No: CO/1469/2006
Neutral Citation Number: [2007] EWHC 3186 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 14th December 2007

Before:

MR JUSTICE STANLEY BURNTON
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Between:

	THE QUEEN ON THE APPLICATION OF BENNET-GAY	Respondent/
Claimant	
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Appellant/
Defendant	

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(DAR Transcript of 
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Ms K Olley (instructed by the Treasury Solicitors) appeared on behalf of the Appellant. 
Mr E Pipi (instructed by Callistes Solicitors) appeared on behalf of the Respondent.
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Judgment

Mr Justice Stanley Burnton:

1.	This case came for judicial review of an immigration decision or decisions of the Secretary of State brought by Miss Bennet‑Gay, who is a citizen of Jamaica, who came here some considerable time ago.  In 2002 the Secretary of State gave directions for her removal and refused to grant her asylum.  She appealed, claiming asylum on the basis that she had been a witness to murder in Jamaica and would be at risk of death or serious injury at the hands of those involved in that murder if she were returned to Jamaica.  The adjudicator heard her claim and found that she was lying.  He rejected it on the grounds of credibility.  Notwithstanding the rejection of that claim, the claimant remained in this country and she entered into a ceremony of marriage with a man from whom she is now separated, and she has had two children by different men.  Neither child lives with her.  One is the subject of a residence order and therefore cannot be removed from this country without an order of the court, or be deemed as been having privileged rights; and one is living with another lady and is not, as far as the evidence goes, the subject of such an order.  There is evidence to the effect that both children are seen by their natural fathers and by the claimant.

2.	The original claim, following the rejection of the asylum claim, was a claim based on the marriage.  Under the Immigration Rules, neither the solicitor’s letter, which enclosed a formal application form, nor the application form itself, referred to Article 8 rights.  The claim was rejected on the ground that the claim did not fall within the act or provisions of the Immigration Rules.  It is not suggested that, insofar as the rejection was based on the Immigration Rules, it was mistaken.  What is said is that the Home Secretary failed to consider Article 8.  However, Article 8 had not been referred to in the claim and there was nothing in the material then before the Secretary of State to indicate that the marriage -- if, indeed, it was subsisting and I assume it was; or, rather, life under the marriage between the claimant and her husband ‑- could not be continued in Jamaica or some other country.  It seems to me in those circumstances that the Secretary of State cannot be criticised for not considering an Article 8 claim which had not been put forward and therefore not set aside that decision.  

3.	However, an Article 8 claim was then put forward and has been subject to correspondence culminating in a long letter of 2 July 2007.  Mr Pipi asked me to disregard that letter on the ground that it is subsequent to the decision which is the subject of these proceedings.  It is the practice of this court to consider matters in a case such as this as at the date of the hearing; therefore I do take that letter into account.  The letter, I should say, rejects the Article 8 claim as not constituting a fresh claim.  Mr Pipi contends there is a right of appeal under section 82.  However, it seems to me that, there having been a claim which is the subject of the adjudicator’s decision to which I have referred, the Article 8 claim falls to be considered under the fresh claim provisions -- that is to say, if there is a real prospect of it succeeding then an appeal is justified; if not then not.  The consideration of that is in the letter of 2 July 2007 which, it seems to me, is the letter which matters, since it was written after clearly there had been submissions to the Secretary of State of the evidence of their both looking after the two children.  It is affected by the fact that the evidence put before the Home Secretary really was not sufficient.  There should have been a comprehensive account of the position of the children and the claimant, dealing with the possibilities of the children going to Jamaica; of her looking after them in Jamaica; of her visiting them here; of the position of the parents and the like.  A residence order has been made.  This court and, indeed, Mr Pipi and the Home Secretary, are ignorant of the basis on which it was made.  Whether the judgment of the court or, more particularly, the evidence on which it was based bears upon this present application -- I suspect it would: To consider the abilities or capacities of the claimant as a mother; and the residence order, of course, had the effect of denying her the right of the child being looked after by her and residing with her.  

4.	The Article 8 claims are, by their nature, relatively weak.  As the House of Lords has said on one occasion, they only succeed in exceptional circumstances.  The House of Lords has stepped back from that, but again made it clear that it would be unusual for such a claim to succeed.  The claimant herself has no arguable Article 8 claim in her own right, apart from consideration of the position of the children.  The real question is whether the Home Secretary’s decision, in relation to the children and their relationship with their mother, can be said to be perverse.  The decision did deal with matters in detail.  It is affected by the fact that the material before the Secretary of State was incomplete -- as I have already said -- but that is not a matter on which the Secretary of State can be blamed.  It is for the claimant and those advising her to put forward complete material before the Secretary of State.   In the end, the question is whether the Secretary of State’s consideration of the Article 8 claim is reasonable.  The view that was taken by the Secretary of State is that the Article 8 application had no reasonable prospects of success before an adjudicator.  

5.	I must say, my mind has wavered in this case very considerably.  It seems to me that immigration control would be very seriously affected and weakened if persons coming here were able, as a result of giving birth to children, to avoid immigration control.  That is really what the position would be here.

6.	On the other hand, the position of the children is relatively complicated and the evidence for it is somewhat inadequate.  The letter assumes that the claimant could visit this country if her children remain, or could possibly take the children with her.  It seems to me that those are rather untested assumptions which affect the decision of the Secretary of State.  I have to ask myself whether it is possible that, if there were a hearing before an immigration judge now, there is any realistic prospect of this Article 8 claim succeeding.  Rightly or wrongly, I would like to see the Article 8 claim before an adjudicator on the basis that the adjudicator is likely to receive rather more evidence than is now available and be able to question the claimant, if she gives evidence, as to precisely what her relationship is with the children and, if necessary, her evidence would be tested by cross‑examination.  In this complicated case, it seems to me that the Secretary of State has made a number of assumptions which may or may not be well‑founded, and the appropriate order in those circumstances is to quash the decision of the fresh claim.  The result will be that there may be an appeal to an immigration judge.  It may well be that it will fail, but on the material before me it seems to me that I am unable to say that it is impossible for it to succeed and the Secretary of State has made a number of assumptions which may or may not be well‑founded which mar her decision.  So, not without hesitation, I come to the conclusion that I should grant relief in this case.

Order:  Application granted