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

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte KAMARA

Queen's Bench Division

[1991] Imm AR 423

Hearing Date: 9 May 1991

9 May 1991

Index Terms:

Notice of refusal to vary leave to remain in the United Kingdom -- whether good notice under notices regulations -- sent by Secretary of State to last known address -- address given to Secretary of State by sponsor and friend of applicant -- applicant had subsequently moved without advising Home Office of later address -- whether Secretary of State entitled to rely on apparently reliable information from third parties. Immigration Appeals (Notices) Regulations 1984 r 6(a).

Held:

Application by Secretary of State to set aside leave granted to move for judicial review of decision to refuse applicant variation of leave to remain in the United Kingdom. The applicant did not, it seems, receive the notice of refusal in time to appeal to an adjudicator. It had been sent to his last known address, but he had moved, without advising the Home Office that he had done so. The last known address had been given earlier to the Home Office by the applicant's sponsor and, independently by another friend of the applicant. Counsel argued that in the events which had happened, no good notice had been served: the Secretary of State was not entitled to rely on information which had come from third parties, and not from the applicant himself. Held: 1. The submission was unarguable. There must be many cases in which apparently reliable and credible evidence coming from close relatives or friends was not only evidence on which the Home Office would be entitled to rely but indeed evidence on which they would have to rely. 2. Leave to move would be set aside.

Cases referred to in the Judgment:

No cases are referred to in the judgment

Counsel:

J Kumi for the applicant; D Pannick for the respondent PANEL: Hutchison J

Judgment One:

HUTCHISON J: This is an application on behalf of the respondent, the Secretary of State for the Home Department, to revoke leave granted by Otton J following an oral hearing in this case. It is possible to deal with the matter quite shortly. The relief sought was an order in respect of the refusal of leave to remain in the United Kingdom dated 29 November 1989. There were difficulties in the way of the applicant in connection with section 14 of the Act. Mr Kumi has very sensibly acknowledged that there is in the light of the law as it now stands only one point which he can argue, and that depends on the Immigration Appeals (Notices) Regulations 1984. The point remaining in the case is whether there was compliance by the Home Office, when they sent notice of refusal of leave, with the provisions of regulation 6 of those regulations, which provides: "Any notice required by regulation 3 to be given to any person may be delivered, or sent by post in a registered letter or by recorded delivery service to -- (a) that person's last known or usual place of abode." The question is whether by sending the letter to 43 St Andrews Road, Bridport, Dorset, which is what they did, the Home Office were sending it to what was so far as they were concerned the applicant's last known or usual place of abode. The evidence on that subject is that, following a period when the applicant had worked for a farmer, the Home Office received information in 1989 the he had ceased that work and gone to live at an address at 28 Cherry Tree. However, I should say that as far as the evidence initially before me was concerned that was the last address known to the Home Office. By the time of the service of the notice the applicant was living at an address at North Allington, not at 43 St Andrews Road. However, I have been shown -- if necessary, affidavit evidence can be sworn in order to exhibit this document -- a letter written by the applicant's one-time fiancée, a Miss Potter, dated 30 October 1989 in which she writes to the Home Office in the following terms: "I am writing to confirm that I am no longer engaged to Mr Kamara. I do not want anything to do with his case. However, Mr Kamara is presently living at the following address: 43 St Andrew's Road, Bridport, Dorset." She goes on to say that he is using her address much to the annoyance of herself and her family and that she has not seen him for five months. Other evidence on the subject is contained in the applicant's own affidavit in support of his application for relief, in which he says: "After I applied for leave to remain in the United Kingdom I was obliged to change my rented accommodation from 43 St Andrews Road to 148 North Allington, Bridport." There is also a letter from his solicitors dated 27 February 1990 in which they say: "Our client did not receive the notice of the refusal to remain because it was sent to the last address known to you for our client, being 43 St Andrews Road, Bridport . . .". Finally, I should mention that I am told, although I have not seen -- the remarks I have made as to an affidavit apply to this also -- that there is on the Home Office file a letter from Mr Cook, a gentleman who was at one time a sponsor of the applicant and was said by the applicant to have adopted him in Sierra Leone, in which Mr Cook also indicates that during the summer of 1989 the applicant had gone to the address at 43 St Andrews Road, Bridport. It appears to me plain, therefore, in so far as it is material that after he left Cherry Tree the applicant went to 43 St Andrews Road, Bridport. I am not impressed by the affidavit which he has filed today in which he says this: "Although it is correct that I have lived in Bridport at the address, 43 St Andrews Road, 28 Cherry Tree and 148 North Allington I am unable to remember the precise dates at which I lived at those various addresses or indeed the order in which I occupied those addresses". Plainly, it seems to me, it is shown that immediately before he went to 148 North Allington he was residing at 43 St Andrews Road. However, the precise question which arises is whether in the light of the information they had from Mr Cook and Miss Potter the Home Office were entitled to regard 43 St Andrews Road, Bridport as his last known address. In my judgment they were. Mr Kumi argues that matters of this sort are always difficult and complex and that he should have an opportunity to argue the question of law that arises. He submits that it is arguable that such hearsay evidence should not be accepted and that the respondent should have been entitled to rely only on information coming directly from the applicant. I cannot conceive that that is so. There must be many cases in which apparently reliable and credible evidence coming from close relatives or friends is not only evidence on which the Home Office would be entitled to rely but indeed evidence on which they must rely. One imagines the position, as I put in argument, if the applicant had in fact moved to the address given by a girlfriend or parent and the Home Office had rejected that information and continued to correspond to the old address. One cannot envisage that an argument on their part that that was to their mind the last known address would receive sympathy. It seems to me, therefore, in the light of those facts that the only point relied upon is one inevitably doomed to failure. This notice was sent to the applicant's last known and usual place of abode (43 St Andrews Road). Unfortunately, it was not received by him, but no point is taken on that. There is no possible basis on which this application can succeed. I therefore allow the application to set aside leave.

DISPOSITION:

Leave set aside

SOLICITORS:

Milne & Lyall, Bridport; Treasury Solicitor