R v. Immigration Appeal Tribunal, Secretary of State for the Home Department, Ex parte Fashogbon

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE, CROWN OFFICE LIST

(MR JUSTICE LATHAM) Royal Courts of Justice

Strand

London WC2

Tuesday 16th June 1998

Before: LORD JUSTICE SWINTON THOMAS, LORD JUSTICE WARD-and-LORD JUSTICE WALLER

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

Regina- v Immigration Appeal Tribunal, Secretary of State for the Home Department ex parte Fashogbon

MR A ADEREMI (instructed by Rosett Offonry & Co., London NW6 2RH) appeared on behalf of the Applicant.

MISS L GIOVANETTI (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.

JUDGMENT

(As Approved by the Court)

LORD JUSTICE SWINTON THOMAS:

This is a renewed application for leave to move for judicial review of two decisions, a decision by the Immigration Appeal Tribunal refusing leave to appeal against a decision of the Special Adjudicator and, second, an application to quash a decision of the Secretary of State not to revoke a deportation order made against the applicant.

The chronology leading to the decisions was this. The applicant was born in Nigeria on 24th September 1959. He arrived in this country on 4th January 1988 and was given leave to enter as a visitor for a period of six months. That six months expired on 4th June 1988, and on 11th August 1994, the applicant having failed to leave but having managed to remain in this country, applied for asylum. That application was refused on 3rd May 1995. The notice to deport was served on 20th July, and on 23rd the applicant served his Notice of Appeal against that decision.

That chronology is in itself, in my judgment, of relevance to the next important matter in this application, which is that on 24th August 1995 - that is to say almost exactly one month after the notice of appeal against the deportation decision - the applicant married a lady who is a British citizen.

On 7th March 1996 he applied to remain in this country on the basis of his marriage, and on 5th March 1997 he withdrew his claim for asylum. That in itself was two days prior to the hearing before the Special Adjudicator on 7th March. The Special Adjudicator's decision was provided on 2nd May 1997.

Leave to appeal was refused by the Immigration Appeal Tribunal on 22nd September, and that decision was notified to the applicant on 6th October.

On 19th March 1998 the deportation order was signed and it was served on 26th March. Removal directions were set, and in consequence the applicant applied for judicial review. His application was refused by Latham J on 11th May.

As I said, the appeal came before the Special Adjudicator on 25th April 1997. He gave his reasons at some length. He made reference to the making and the withdrawal of the asylum claim and then on page 4, page 20 of our bundle, the Special Adjudicator said this in relation to the applicant:

"He said the reasons he would not wish to be deported to Nigeria include the fact that he would not have a home because his father and mother were dead and he did not know the whereabouts of his other brother and sister. He would be stranded and more or less destitute and considering that he left Nigeria thirteen years ago it would make it more difficult for him to fit into society there. He was now married in this country to a British citizen who has lived here since she was five years old. She has taken a new position as an auxiliary nurse and if he had to go back to Nigeria and leave her here it would break up their relationship. It would be difficult for her to fit into society in Nigeria as she is of Ghanaian origin.

In addition he is a diabetic and is insulin dependent. He takes medication in the form of Human Mixtard 30. It is a pre-mixed pen injection which is not readily available in Nigeria."

Then on page 5, page 21 of the bundle, the Special Adjudicator referred to the fact that there were three main prongs to the applicant's appeal, namely his marriage, his need to be here to seek medical treatment and his difficulty in obtaining employment in Nigeria.

On page 7, page 23, the Special Adjudicator said:

"I have carefully considered the evidence in this case, both oral and documentary. First of all I am not prepared to find the appellant credible as to the circumstances in which he came to initially stay in the United Kingdom. I find it an amazing coincidence that as soon as he arrived here in 1989 within literally a matter of days two other students in his hostel were killed and that he was advised by his friend in Odessa to remain here until matters had improved. He then claimed that he decided to return to Nigeria by March 1990 but again by coincidence his father and brother were killed by the authorities during that month and he was advised by his mother to remain here until matters settled down. I find his story extremely convenient. It lacks plausibility and certainly there is no corroboration. My findings in this respect are important because I am not prepared to believe that he does not have a family to return to in Nigeria. I do not consider he would be destitute and without a home. He is clearly a highly qualified person and therefore his prospects of employment must be greater than most, even allowing for his absence from the country for some time, and I do not consider that unemployment is a major factor to be taken into consideration when assessing compassionate circumstances bearing in mind that there is probably a high rate of unemployment in most countries in the world including the western industrialised countries.

I have been asked to accept that his marriage forms a compassionate factor in this case. However, I note that his marriage did not take place until after the Secretary of State's decision to make a deportation order. It therefore does not come within the Secretary of State's policy document relating to married illegal entrants or overstayers subject to a decision to make a deportation order. The obvious assumption is that the marriage was perpetrated solely to assist with his appeal. I also note that his wife failed to come to the appeal and support his application. Instead she supplied a letter dated 6th March explaining that she was not allowed time off work to attend the hearing. Notice of the hearing had been given on 14th January 1997 and I cannot believe that for something as important as this she would not have been given time off by her employer especially with that amount of notice. As far as I am concerned the marriage is most likely one of convenience but at best not very strong as I cannot believe that in a case allegedly of such importance to both the appellant and his wife, she would not somehow have contrived to appear to give evidence on his behalf."

Mr Aderemi, on behalf of the applicant, submits that the Special Adjudicator was not entitled to reach the conclusion that he did in that paragraph that the marriage was not a genuine one and was one merely of convenience.

I think, as read, there is some substance in the point that Mr Aderemi makes that the Special Adjudicator placed much emphasis on the fact that the wife had not attended at the hearing. That was, in my judgment, a relevant feature, albeit not necessarily an overwhelming one. However, in my view the Special Adjudicator was absolutely entitled to, as I am sure that he did, take into account the chronology and the history which I have related and his view overall about the applicant's credibility in coming to the conclusion that he did in relation to this marriage, which took place very shortly after the abandonment of the asylum claim and prior to the hearing of the appeal. The Special Adjudicator then went on to deal with the issue as to credibility. He said:

"....I am not prepared to find the appellant credible as to the circumstances in which he came to initially stay in the United Kingdom."

He then goes on to set out his reasons for coming to that conclusion. He then went on to consider the other primary limb of the applicant's appeal, namely that it was necessary for him to remain in the United Kingdom in order to receive medical treatment.

The Special Adjudicator said that he recognised that the health facilities in Nigeria might not be as good as the health facilities in this country, but he came to the conclusion that if the applicant was returned to Nigeria he would receive adequate treatment in that country. Accordingly the Special Adjudicator dismissed the applicant's appeal. He did not find that the grounds put forward by the applicant provided reasonable grounds for coming to the conclusion that the Secretary of State was wrong in refusing to permit him to remain here on compassionate grounds.

We now have further evidence which was not before the Special Adjudicator, including medical evidence. There is a medical report dated 4th May 1998 which sets out very fully the applicant's medical condition. At the conclusion of the report it says that the applicant suffers from diabetes mellitus, hypertension, skin rash, depression and a gastric ulcer.

As with the Special Adjudicator, it does seem to me that the overwhelming likelihood is that those are conditions which can be treated in Nigeria and they would not, in my judgment, be such as would require the Secretary of State to allow the applicant to remain here on medical grounds. That medical report was submitted to the Secretary of State and he reconsidered this application, and he replied by letter dated 8th May, starting on page 26 of our bundle, and he concluded by saying that the Secretary of State had considered the medical report and he can see no reason, in the light of that report, to revoke the deportation order.

Latham J considered all the material, and he came to the conclusion that there was no error of law made either by the Special Adjudicator or by the Home Secretary, and he accordingly refused the application. In my judgment the Special Adjudicator, on the totality of the evidence which he had, was entitled to make the findings that he did, and the Immigration Appeal Tribunal were entitled to reach their conclusion. In my view no error of law is made out in this case, and for those reasons I would refuse this renewed application.

LORD JUSTICE WARD:

I agree.

LORD JUSTICE WALLER:

I also agree.

ORDER:

Application refused.