R v. Secretary of State for the Home Department, Ex parte Sarumi

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON A RENEWED APPLICATION FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

Royal Courts of Justice

Strand

London WC2

Tuesday, 3rd November 1998

Before: LORD JUSTICE HIRST, LORD JUSTICE MAY, SIR CHRISTOPHER SLAD

THE QUEEN- v -SECRETARY OF STATE FOR THE HOME DEPARTMENT Ex parte OLAJIDE ABAYOMI SARUMI

(Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited 180 Fleet Street, London EC4A 2HD Telephone No: 0171-421 4040 Fax No: 0171-831 8838 Official Shorthand Writers to the Court)

THE APPLICANT appeared in Person.

MR. S. KOVATS (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.

JUDGMENT

(As approved by the Court)

LORD JUSTICE MAY:

This is a renewed application made by Mr Jerry Sarumi for leave to move for judicial review. He makes it himself, this court having refused his application for an adjournment which he made at the beginning of the hearing. Sullivan J refused him leave on 17th August 1998.

The summary chronology is as follows. I take it from information presented by counsel on behalf of the Secretary of State. It is clear that Mr. Sarumi disagrees with certain of the details in this summary. I will try to draw attention to the more important ones.

Mr. Sarumi was born in 1958. According to the Secretary of State's understanding, and according to affidavit evidence which he himself has in the past put forward, he is a citizen of Nigeria. He, however, does not before this court accept that he is a citizen of Nigeria. He arrived in the United Kingdom as long ago as 12th September 1984, when he was initially given leave to enter for one month as a visitor. He was subsequently given limited leave to remain as a student. That leave expired on 31st July 1985. In September 1985, he was convicted of obtaining a pecuniary advantage by deception and given a 6 month suspended sentence. He has explained to us today his view that he should not be poorly regarded on account of that, the offence having been brought about, he says, by someone else. On 10th December 1985, the Secretary of State refused an application, which was out of time, for him to remain here as a student.

On 21st February 1986, a notice of intention to deport him was served on what was believed to be his last known address. On 29th May 1986, a deportation order was signed. According to the Secretary of State, the applicant had gone to ground at that stage and the deportation order was not able to be served, but Mr. Sarumi disagrees with the suggestion that he had gone to ground. He says that, during the long period which follows, he was in touch with the immigration authorities or the Home Office.

On 18th April 1988 a common law wife of the applicant was served with a notice of intention to deport her. Time passed, and it was not until 27th May 1995 that Mr. Sarumi was arrested on suspicion of fraud on the Department of Social Security. According to the Secretary of State, the deportation order, which had been signed way back in 1986, was served on the applicant in prison on 9th June 1995. Mr. Sarumi tells us that the order was not served in this way and that he simply had a conversation with an immigration officer from whom he walked away, and that he did not sign anything to acknowledge the order on that occasion. However, since, as will appear, he made application to an adjudicator in relation to the deportation order, I can only assume that he did in fact receive it. He was released from prison subject to a restriction order. In March 1996, he appeared in the Crown Court at Snaresbrook and was convicted of the Department of Social Security fraud and was sentenced to 180 hours community service. On 3rd May 1996, the adjudicator, who was asked to consider the matter of his deportation, dismissed his appeal against the deportation destination in the deportation order. On 11th March 1997, Mr. Sarumi was detained and has been in detention ever since. It is one of his complaints that he has been so detained. On 12th March 1997, the following day, he made a claim for asylum which the Secretary of State refused on 29th April 1997. He appealed to a special adjudicator against this refusal of asylum.

The special adjudicator dismissed his asylum appeal on 30th September 1997. In consequence of these matters, he was due to be deported on 13th October 1997 but this did not take place, according to the Secretary of State's understanding, because the applicant became violent. That is another matter with which Mr Sarumi disagrees. He said that he was not violent and that he is not by disposition violent. He was, however, deported to Nigeria on 8th November 1997, but on the following day, the plane having arrived in Nigeria, he was returned to the United Kingdom, according to the Secretary of State because he told the Nigerian authorities that he was not Nigerian but Ghanaian. Mr. Sarumi disputes that as being what he said. His version of this is that he told the authorities in Nigeria that his mother was Ghanaian and that he had trouble because he had not got his lost passport. At all events, he was returned on 9th November 1997 to the United Kingdom. Upon arriving here he made a fresh second claim for asylum which the Secretary of State refused on 2nd January 1998, and he was also refused leave to enter.

On 22nd January 1998, Turner J. refused Mr Sarumi's application for leave to seek judicial review of the decision not to grant him temporary admission. On 19th February 1998, a special adjudicator again dismissed his second appeal against the Secretary of State's refusal to grant him asylum. In July 1998 solicitors acting on his behalf wrote to the Immigration Department in terms to which I shall refer a little later in this judgment, and there was some correspondence arising out of that. It was on 24th July 1998 that Mr. Sarumi lodged the Form 86A seeking leave to move for judicial review, of which today is a renewed application. The matter came before Laws J on paper, who adjourned the matter for an oral hearing. Meanwhile, on 10th August 1998, at least according to the Secretary of State, an emergency travel certificate, which had been produced by the Nigerian High Commission, expired. It was in these circumstances that the application for leave to move for judicial review came before Sullivan J on 17th August 1998.

The originating document, the Form 86A, did not identify any decision by the Secretary of State of which judicial review was sought. It listed five grounds of complaint, adding that further grounds would follow. The listed grounds of complaint were, firstly, that travel documents had been obtained from the Nigerian High Commission without his consent, even though he is not, so the document says, a Nigerian; secondly, what is referred to as long residence policy; thirdly, that the deportation letter was wrongly delivered; fourthly, breach of Article 8 of the European Convention of Human Rights and "family policy"; and, fifthly, the applicant's medical history.

In an affidavit in support of that application, Mr Sarumi set out details of his residence in the United Kingdom since September 1984. He referred to what he understands to be a policy to permit those who have 10 years or more continuous unlawful residence in the United Kingdom to remain here. The affidavit refers to Article 8 of the European Convention of Human Rights, and he claims that in his case there is a breach of that article. The affidavit states that he had been in custody then for 16 months. He says that he was deported to Nigeria on 8th November 1997 but that he was sent back to London, and therefore his deportation back to Nigeria would be a violation of this country's obligations under the United Nations Refugee Convention. He complains of having been handcuffed on a plane from Gatwick to Brussels. He states that he has a well founded fear of persecution in Nigeria. He gives details of his medical history. He says that the deportation letter served in February 1986 was served on the wrong address, even though he had supplied the Home Office with a change of address. He complains that a travel document obtained from the Nigerian High Commissioner was unlawful because he had not consented to it being issued. He complained finally that he had been victimised and inhumanely treated because he made a justified complaint against an immigration officer.

The letter from solicitors to which I referred earlier, acting on behalf of Mr Sarumi, had raised three of these matters; that is to say, the validity of the travel document issued by the Nigerian High Commission, the applicant's relationship with his children, and the service of the notice of intention to deport.

There is also with the papers before this court a statement by Mr Sarumi giving details of military service which he did in Nigeria from 1983 as forming the basis for fearing that his life may be in danger if he should return to Nigeria after 13 years in exile. The statement ends with a plea to the Home Secretary for compassion and consideration on humanitarian grounds outside the Immigration Rules if his application for political asylum is refused.

The note which this court has of Sullivan J's decision on 17th August 1998 indicates that the application made to him was for leave to move for judicial review against the decision of the Secretary of State to keep the applicant in detention pending deportation. The judge recorded that the applicant relied on three matters; that is to say, long residency, family ties and a genuine fear of persecution. Of the first two of these, the judge said that the applicant accepted that these representations had been considered by the Secretary of State and refused. As to the genuine fear of persecution, the judge said that it was clear that this would already have been the subject matter of the two asylum appeals. The judge held that he could find no error of law made by the Home Secretary and further that he found no reason to question the lawfulness of the applicant's continued detention. He found no merit in the application and refused leave.

As to the effectiveness of Nigerian travel documents, there is now before this court a letter dated 13th October 1998 from the Nigerian High Commission, stating that the High Commission will only issue an emergency travel certificate to the applicant when all legal disputation involving his case has been resolved.

Mr Sarumi has made a second affidavit which he puts before this court. It is dated 14th October 1998. This gives a more detailed account of some of the matters to which I have referred. It re-states the contention that the applicant is not a Nigerian citizen. He says that he understands that he was born in Sudan and was the only child of a Ghanaian mother and a Nigerian father, both of whom are no longer alive. The applicant had, in the earlier statement to which I have referred, given details of his military service in Nigeria from about 1983, and Mr. Kovats tells us that in an earlier affidavit Mr Sarumi has stated in terms that he is a Nigerian citizen.

In his oral submissions to this court today, Mr. Sarumi first referred to what he calls the 14 year rule which, according to his understanding, means that people will normally be granted leave to remain in this country even if they are unlawfully here if they have been here for a long time, 10 or 14 years, provided that there are no countervailing factors. There are, he submits, none in this case. He refers to matters in his affidavit in which he explains features of the history which might be seen as unfavourable; for instance, in relation to incidents in 1984 and 1985 and then in 1995 when he made appearances in court and since. He explains that he was unable to renew his visa back in the 1980s as his passport was being withheld. He tells us that he expressed in 1993 an intention to try to renew his visa. He explains that he had been signing on at a police station for 21 months before his arrest in March 1997. He mentions his family circumstances, in particular, the fact that he is responsible for two children.

As to the 14 year concession, Mr Kovats has drawn our attention to paragraph 1569 in Macdonald which explains, among others things, that this is a concession under which the clock stops running when deportation action is taken. In this case deportation action was taken in 1986, or, at the least, in 1995.

Mr. Sarumi complains that what he refers to as bouncing him back from here to Nigeria and back may constitute a breach of Article 3 of the Convention of Human Rights and explains that in his submission, Nigeria having refused to admit him last year on the basis that he was not a Nigerian, he should now be granted exceptionally indefinite right to remain. As I have said, Mr Kovats has explained that an affidavit in previous judicial review proceedings by Mr. Sarumi had stated that he is a citizen of Nigeria, and Mr. Kovats submits that if he was returned from Nigeria, it was his own voluntary act of saying that he was in fact Ghanaian or that his mother was Ghanaian that produced this. He submits that two journeys on an aeroplane cannot be regarded as inhuman treatment. As to the travel documents, Mr. Sarumi submits that the documents which were around in the summer of this year were, as he would have it, false documents because he had not indorsed them himself. He also submits that section 17 of the Immigration Act 1971 enables a person to appeal against the destination to which a deportation order applies. This is what Mr. Sarumi himself did when he appealed to an adjudicator in 1996 against the destination to which the Secretary of State intended to deport him.

As to his detention (I recall that in form Sullivan J was dealing with the application for leave to move as an application in relation to the decision to detain him) Mr. Sarumi complains that he has been detained unnecessarily, and he would say unlawfully, for a period of 21 months, but it is plain that his detention is lawful under paragraph 16(2) of Schedule 2 of the Immigration Act and paragraph 2(3) of Schedule 3 of the Immigration Act 1971. Mr. Sarumi reminds us of details in his affidavit of his medical condition. He says that he has a serious back problem and serious eye problems which have not been treated whilst he has been in detention. He says that he has had a lot of hardship during the 21 months that he has been detained and so have his children. He says that he has his own computer company and has lived here for 14 years. The gist of his submission is that in all the circumstances he ought to be permitted to remain. As I said, he says that he is not a violent person, as has been suggested, and that he is not violent by disposition.

Taking all these matters into account, my view of this case is as follows. Mr. Sarumi's leave to remain in this country expired more than 13 years ago. His presence here since then has been unauthorised. In June 1995 he was, I am satisfied, served with a deportation order which had been signed nine years earlier. He must have been so served, despite his protestations to the contrary, because he appealed against his deportation destination. An adjudicator dismissed his appeal against the deportation destination in May 1996 and in September 1997, and again in February 1998 special adjudicators have dismissed his appeal against the Secretary of State's refusal to grant him asylum. Procedurally his rights of appeal in these matters are exhausted and, although he may protest that he has a strong case for being granted asylum and not being deported and for being permitted to remain in this country, there is in my view no material before this court to indicate that any of the decisions adverse to his case that have been made are or ever were amenable to judicial review. He has made out no case that his present detention is unlawful.

Mr Sarumi plainly and understandably feels strongly about many aspects of his case. The broad purpose of judicial review, put in simple language, is to consider whether administrative decisions have been properly, lawfully and fairly taken. This court is not concerned to entertain a wide ranging reconsideration of all the details of Mr. Sarumi's long case. There are, in my view, no decisions amenable to judicial review. In particular, there is no error of law or other impropriety in his present detention. I would, for these reasons, dismiss this application.

SIR CHRISTOPHER SLADE:

I agree.

LORD JUSTICE HIRST:

I also agree.

Order:

Application refused.