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

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(CROWN OFFICE LIST)

Royal Courts of Justice Strand London WC2

Monday, 6th July 1998

Before: MR JUSTICE MOSES

REGINA-v-THE SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE ASARE

MR T EICKE (instructed by Lawrence and Company, London W9 3RU) appeared on behalf of the Applicant.

MR A MCCULLOUGH (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.

JUDGMENT

MR JUSTICE MOSES:

This is an application for leave to move to quash removal directions, although the application seems to have been brought before the decision as to the removal directions, which was dated 1st July 1998.

The immigration history of this Applicant makes somewhat dispiriting reading: he arrived on 27th September 1994 and entered illegally; in February 1994 he claimed political asylum; in October 1996 he married Levina Oforiwaa Asante, who is a British citizen; he was refused asylum in February 1997; he then applied for leave to remain as a spouse in March 1997; he was declared an illegal entrant in April 1997 and granted temporary admission with conditions; in May 1997 his daughter was born.

The Special Adjudicator dismissed his appeal in September 1997. He was refused leave to remain on grounds of marriage in November 1997. He had thus known from November 1997 that he was going to have to leave the country. In March 1998 removal directions were set for 24th March 1998. On 24th March further temporary admission was granted. In May 1998 his solicitors indicated that he was going to make arrangements to go to Holland where he and his wife were going to live and work.

Removal directions were again set for June 1998 and that month alas the Netherlands authorities refused a visa. That apparently may be the subject matter of legal proceedings there. Fortunately on 24th June 1998 Mrs Azare was offered a job from Sea Trek. Nevertheless the Home Secretary remained determined to remove this Applicant and removal directions were given again on 1st July 1998.

The application is made on the basis that to enforce removal pursuant to immigration legislation would be contrary to the United Kingdom's obligations under the Treaty, and, in particular, under the Directive, Article 48 of the Treaty, guaranteeing freedom of movement to nationals of Member States, and the Council Directive 68/360 pursuant to which under Article 1:

"Member States [are required to]... abolish restrictions on the movement and residence of nationals of the said States and of members of their families..."

Then under Article 2(1):

"Member States shall grant the nationals referred to in Article 1 the right to leave their territory in order to take up activities as employed persons and to pursue such activities in the territory of another Member State...Members of the family shall enjoy the same right as the national on whom they are dependent."

It is argued that by requiring the Applicant to leave and go to Ghana from which he should make his application for a visa to the Republic of Ireland, rather than affording him the facilities within this country to apply for a visa, the Secretary of State is acting in breach of that Directive and, indeed, in breach of Article 5 of the Treaty when read with Article 48 and that Directive.

In my judgment it is very doubtful, indeed, as to whether that gives rise to an arguable case and had I been reaching a firm conclusion today I would have refused leave. My reasons are as follows: the obligations under the Treaty are subject always to the right of Member States to preserve the integrity of their particular immigration systems. That principal has been enunciated in a number of cases, including the decision of the European Court of Justice and R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department Imm App R, particularly at paragraph 24.

In this case the Secretary of State says that the immigration history amply shows that he is justified to require this Applicant's removal as soon as possible. He has had, since November 1997, to make arrangements and it is said that whilst the job offer in Ireland is only recent, it is quite apparent that Mr Azare did not want to return to Ghana. He has had ample time to try to make alternative arrangements. Unfortunately those alternative arrangements have not proved successful. That, in my judgment, provides no arguable warrant for requiring the Secretary of State to wait any further.

The Applicant says,

'It is only a total of six weeks to obtain such a visa. The very least you could do is to give me that short opportunity to do so.'

The Secretary of State says,

'There is no guarantee that it will be done then. It could take months and months during which the integrity of the immigration system suffers by having to allow Mr Azare to remain and not comply with the removal directions, and there is no guarantee any way that he might not try yet further Member States, or through his wife try other Member States, to avoid removal to Ghana.'

I agree with the Secretary of State's submissions. However, since there has already been two weeks and it is only another matter of four and a half weeks, it does seem to me that the matter might be dealt with with some regard to mercy for particularly his wife by giving a little bit of a further opportunity to try to see if he can obtain a visa to Ireland. Whilst I hope I have said enough to indicate that I do not think there is anything in this application and I do not think that it is arguable, I am nevertheless prepared to allow that further opportunity by the device and it probably is no more than a device of adjourning this application for another five weeks. That means that this Applicant has effectively another five weeks to try to get the visa.

It will be no good, in my judgment, to try to come back then and re-argue this, and because I hope I have given sufficient reasons for saying that had I not granted the adjournment I would have refused leave and perhaps another judge would take the same view.

Effectively what I am doing is giving another five weeks, but if he cannot get the visa in that time then he must go back to Ghana on the next available flight. If it does come back you better try and get a copy of the transcript of what I am saying and tell the next judge.

MR EICKE: In the light of your indication, assuming we will not have to come back, this client is----

MR JUSTICE MOSES: Yes, legal aid taxation.

MR McCULLOUGH: Thinking on my feet, I wonder if it might be possible to phrase the Order in a way that would, on either event, avoid the parties coming back and rearguing the matter.

MR JUSTICE MOSES: If I make an Order it does not sound like an adjournment, does it? Everybody knows it is the Applicant's obligation if he does come back to tell the judge precisely what I have said and if it all works, or if it does not work and the Applicant accepts he has to go, then all it needed is a letter by consent "Leave refused".

MR McCULLOUGH: My Lord, yes. So be it.

MR JUSTICE MOSES: I think that is the best way to do it. Just a combined letter faxed to the Court.