Immigration

Administrative decision-making – Armed forces – Character – Conduct

R (on the application of Charly Ngouh) v Secretary of State for the Home Department: QBD (Admin) (Mr Justice Foskett): 27 August 2010

The claimant (N) applied for judicial review of the decision of the defendant secretary of state refusing his application for indefinite leave to remain in the UK on the basis of his service in the British Army.

N was a national of Cameroon where he was born and educated. He passed the International Baccalaureate and came to the UK at the age of 21 with leave to enter as a student to study English. That leave was subsequently extended. Shortly before the end of that extended leave he enlisted in the British Army and served for a total period of just less than four-and-a-half years, including a six-month dangerous operational tour of duty in Iraq. While serving in the army he had been convicted of a sexual assault on a female soldier and had been sentenced to 112 days’ detention in a military corrective and training centre. After serving his sentence, receiving a one-third credit for good behaviour, he returned to his unit. Thereafter he had been recommended for promotion. There was no suggestion of any repetition of conduct of that nature at any stage subsequently. N left the Army and applied for indefinite leave to remain in the UK. The secretary of state asked N to provide a full certificate of discharge or confirmation in writing from an official army representative detailing the paragraph of the Queen’s Regulations under which he was discharged. However, before the deadline for supplying that information had passed, N was given a notice of decision that his application had been refused. He made a further application for indefinite leave to remain which was rejected on the ground that his conviction for a sexual offence made it undesirable for him to remain. After the issue of proceedings for judicial review N flew to Cameroon and back to see his father who was ill, using his old Cameroon passport which had not expired, together with certain documents with which he had been issued in the army. The secretary of state then issued a further decision notice relying on that episode as further evidence that N’s character and conduct were such as to make it undesirable for him to remain in the UK.

Held: (1) An unfair approach was adopted initially to N’s application for indefinite leave to remain when the decision was made before he had had an opportunity to deal with the Queen’s Regulations issue raised by the secretary of state. It had been held that errors in the process prior to the material decision should, in appropriate circumstances, be taken into account by the secretary of state when making that decision, SL (Vietnam) v Secretary of State for the Home Department [2010] EWCA Civ 225 considered. That unfairness had not been acknowledged or explained. The final decision letter wrongly assumed that N had failed to comply with reasonable requests concerning an important element of his application at the outset. That factor should not have been relied on by the secretary of state.

(2) The fact that there was no dishonourable discharge and that N continued his service after the conviction raised at least the question of how serious it was in the eyes of the army and consequently more generally. The final decision letter did not engage with the substance of what N did nor did it give more than an extremely superficial reason for suggesting that his character and conduct had been shown to be sufficiently wanting to warrant denying him indefinite leave to remain. Any fair-minded assessment of N’s character and conduct required a true balance to be struck between the conviction and its surrounding circumstances, on the one hand, and the very positive references he received from the army, those references to be assessed also against the background of that part of his service in what was a very dangerous part of the world at a very dangerous time, on the other. That latter, highly material, aspect of the background did not appear to have been reflected at all in the secretary of state’s thinking as reflected in the letter.

(3) N had attempted to obtain entry by the presentation of invalid travel documents. He did not in fact secure entry to the UK as a result since the invalidity of the documents was identified at the point of entry. Again there was a failure in the decision letter to engage with the substance of what N did against the background of the difficulties N faced in relation to visiting his ailing father.

(4) The balancing exercise required by paragraph 322(5) of the Immigration Rules had not been carried out in a way that engaged with the true issues and reached a rational view. The decision-making process overall demonstrably failed to address fairly and fully the true issues. The secretary of state’s decisions were quashed and remitted for reconsideration.Application granted.

Helen Mountfield QC, Samantha Knights (instructed by Immigration Advisory Service) for the claimant; Alexander Ruck Keene (instructed by Treasury Solicitor) for the defendant.