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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 >> Mahavi, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2548 (Admin) (12 June 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/2548.html Cite as: [2008] EWHC 2548 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		12 June 2008

1. MR JUSTICE CRANSTON: This is a renewed application for permission. The case has had a chequered history.
2. The claimant arrived in this country in 2004 and he said in interview that he had never been fingerprinted. It soon became apparent that he had been, in the Netherlands, where he had made a previous claim for asylum. The Dutch authorities accepted responsibility under the Dublin Regulation, and the claimant's asylum application in this country was refused. The claimant then seemed to disappear, but was arrested in August 2005 for driving offences. He was also cautioned for possessing a Class A drug. He was then sentenced to a short period of imprisonment, and he was certified on safe third country grounds. He was then removed to the Netherlands under escort. Then in December 2005 he re-entered the United Kingdom. He used a false Greek passport. He sought a National Insurance number in the name of the Greek person whose passport he had, and he used the passport as proof of identity. He was arrested in January 2007 for fraud for attempting to obtain the National Insurance number. He was convicted before the Birmingham Magistrates' Court.
3. The claimant then says that, last year, he had a son. He says he has established a relationship with a Tracy Newis in Birmingham. In a statement to the court, undated, but at page 139 of his bundle, he explains how he met Tracy Newis in 2006, how they lived together, how he was sent to prison, but how nonetheless he had the child, Mason, who is now, as I understand it, some 13 or 14 months old, having been born in February of last year.
4. The Dutch authorities, to complete the story, have accepted responsibility to consider his asylum application, and the Secretary of State has certified any human rights claim that he might have as being clearly unfounded. There is now this application for judicial review.
5. The Secretary of State, in a lengthy letter of November 2007, addresses the issue of the application of the family ties policy. At paragraph 14 she sets out the policy, and quotes the passage in the policy which says that: "The intention of the policy is to reunite members of an existing family unit who, through circumstances outside their control, have become fragmented". She then goes on to conclude that the policy has no application in this sort of situation where the relationship, in this case with Tracy Newis, has been established after the claimant came to this country. I have no doubt that that application of the policy in this case is absolutely correct, and I say nothing more about it in this judgment.
6. Mr Jafar today, with his expertise in this area, has now advanced a claim based on a different policy. That is the policy which he says can be spelt out from the judgment of the Court of Appeal in MS (Ivory Coast) v the Secretary of State for the Home Department [2007] EWHC Civ 133. He took me to a number of paragraphs in that decision, and in particular paragraph 75, where Scott Baker LJ refers to the decision of the Secretary of State to give an assurance that the appellant in that case would not be removed until the contact application had been resolved. Mr Jafar contends that, in this case, if the Secretary of State had applied that policy to the claimant, then she would have decided that the claim could not be certified as clearly unfounded. He reinforces his argument by reference to a decision of the European Court of Human Rights in Ciliz v The Netherlands, decided on 11 July 2000. He takes me to paragraphs 70 and 71 of that decision in which it appears that the court decided that in that case there was a breach of the applicant's human rights in seeking to interfere with his ongoing proceedings in the Netherlands courts to obtain contact with his son.
7. For the sake of completeness I should say that both parties -- both Mr Jafar and Mr Kellar for the Secretary of State -- have said that inasmuch as there is an Article 6 claim in relation to the custody proceedings, they are parasitic on any Article 8 claim which the claimant might have. So it is with that in mind that I concentrate on the Article 8 claims advanced by Mr Jafar on behalf of the claimant.
8. Mr Jafar reinforces the Article 8 argument by submitting that if the Secretary of State were to remove the claimant now, not only would that interfere with the ongoing contact proceedings, but it would mean that the claimant could not return to this country for ten years given the application of immigration policy.
9. The Secretary of State, in her letters both of 12 November and also of 6 June, has addressed the Article 8 point. The Secretary of State has said in the November letter that she had taken into account that the claimant had not really seen his son because he was born while the claimant was in prison and had not seen him subsequently. That, in my view, is not a good argument. However, in her subsequent letter of 6 June, she addresses the Article 8 point in some detail. She refers to the poor immigration history, which I have outlined, of the claimant. She then considers the relationship of the claimant with Tracy Newis and also with his son, and she says that any family life which the claimant has formed with Tracy Newis and the child has been formed in full knowledge of the fact that he has no right to remain in the United Kingdom.
10. She also makes the point, referring to the House of Lords decision in Huang from last year, that the issue of proportionality justifies the decision to interfere with the family life which the claimant has under Article 8. In that letter, the Secretary of State also addresses the Article 6 point, and she takes the view that it is possible for the claimant to pursue the care proceedings from the Netherlands. That is dealt with at paragraph 9 of that letter.
11. Mr Jafar advances the argument in relation to Article 8 by saying that any decision to send the claimant to the Netherlands would completely negate his Article 8 rights in relation to both Tracy Newis and his son. He says that this is a particularly important time. There is a meeting scheduled for 23 June where contact will be, as he advanced it, determined, and it is simply not possible for the claimant to advance that contact argument effectively from abroad, if at all, when it is not possible to be seen by those making the decision about contact.
12. Notwithstanding Mr Jafar's strong submissions, the approach of the Secretary of State is, in my view, the correct one and I adopt it as my own. The point about lack of contact when the claimant was in prison is not persuasive. However, I ask myself this question: say the claimant was successful at the contact proceedings on 23 June (and of course I suspect that the contact proceedings might not be determined on that particular date, but assume that they were), what would be the result if the claimant were to be given contact with his son? In my view, it would be a Pyrrhic victory in that even if the claimant were to have a contact decision in his favour, it would still not be disproportionate for the claimant to have those Article 8 rights interfered with. The fact is that this claimant does have an unfortunate immigration history, I put it no higher than that. More importantly, in my view the Secretary of State is entitled to apply -- in fact, is obliged to apply -- immigration policy. One aspect of that is the Dublin Regulation. This claimant claimed asylum in the Netherlands. It is appropriate that the Netherlands deal with that matter. In my view, he must go to the Netherlands and advance any claims he has from there. So I refuse permission.
13. MR KELLAR: My Lord, there is the usual application for costs solely of the acknowledgment of service. I seek the sum of £400 in that respect yes.
14. MR JAFAR: My Lord, I would seek to resist that. There is a substantive argument despite the ultimate conclusion, my Lord -- five authorities which have not been referred to by the Secretary of State. The claimant was entitled to know why they were not applied or considered. I would argue, my Lord, that in these circumstances, costs should not be awarded.
15. MR JUSTICE CRANSTON: In my judgment, the Secretary of State has considered this matter at great length and so I make the normal order.
16. MR JAFAR: My Lord, I would seek permission to appeal.
17. MR JUSTICE CRANSTON: You will have to go somewhere else.
18. MR JAFAR: Thank you, my Lord. Finally, the claimant is publicly funded.
19. MR JUSTICE CRANSTON: You want an assessment; you are entitled to that.