Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 155
P373/11	OPINION OF LORD BANNATYNE in the Petition of AMC (A.P.) Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department to certify her decision to deport the Petitioner from the United Kingdom in terms of section 94 of the Nationality, Immigration and Asylum Act 2002 ­­­­­­­­­­­­­­­­­________________

Petitioner: Caskie; Drummond Miller

Respondent: Webster; Office of the Solicitor to the Advocate General

16 September 2011

[1] The petitioner seeks judicial review of a decision dated 24 March 2011 of the Secretary of State for the Home Department ("Secretary of State") to certify in terms of section 94(2) of the Nationality, Immigration and Asylum Act 2002 that her claim under article 8 ECHR was clearly unfounded. At the first hearing Mr Caskie, advocate appeared for the petitioner and Mr Webster, advocate for the Secretary of State.

The factual circumstances
[2] The petitioner is a citizen of Colombia, born on 2 June 1963. She entered the UK in or about 1987. She thereafter married a citizen of the UK, and she was granted indefinite leave to remain on or about 24 April 1988 as a spouse of a British citizen.

[3] That the petitioner and her husband lived together for about eighteen months. The petitioner has had no contact with her spouse for about twenty years and no trace had been found of him until as part of the process of resisting deportation he was found in Bognor Regis.

[4] That the petitioner moved to Edinburgh in or about 2003. On 12 October 2005 she was convicted of a drugs related offence at Edinburgh Sheriff Court, namely: an offence under section 4(3)(b) of the Misuse of Drugs Act 1971. As a result of said conviction she was sentenced to twenty months' imprisonment. She was due for release on or about 11 August 2006.

[5] On or about 11 August 2006 the Secretary of State decided that it was appropriate to deport the petitioner from the United Kingdom to Colombia. On or about that date the Secretary of State served the petitioner with a notice of intention to make a deportation order in terms of the Immigration Act 1971, section 3(5)(a).

[6] The petitioner's immigration history since 11 August 2006, is as follows: she lodged an appeal to the Asylum and Immigration Tribunal against the decision that she should be deported from the United Kingdom. That appeal was dismissed on 21 November 2008. She then sought reconsideration of that decision which was granted, but on 28 July 2009 it was determined by the Asylum and Immigration Tribunal that the Immigration Judge who considered her appeal had not erred in law. She sought leave to appeal to the Inner House, but that application was refused on 18 June 2010. The petitioner had also pursued a judicial review before this court in respect of the validity of certain immigration rules relevant to her deportation. That was subsequently dismissed without substantive consideration. She also brought a judicial review to this court in respect of a refusal of the Asylum and Immigration Tribunal to adjourn a hearing when her case was before that Tribunal. On 6 August 2010 the Secretary of State signed a deportation in respect of the petitioner.

[7] On 2 March 2010 the petitioner was detained, served with a deportation order and directions for her removal to Colombia to take effect on 25 March 2011. On 22 March 2011 the petitioner's agents made further representations on behalf of the petitioner on the basis that her removal from the United Kingdom would breach Article 8 ECHR.

[8] It was common ground in the assessment of human rights claims in the United Kingdom the courts have defined such claims as either "foreign cases" or "domestic cases". The distinction between these two is that in foreign cases the events that are said to constitute a breach of the person's rights are events that will occur overseas, e.g. the person subject to removal will suffer torture, inhuman or degrading treatment on or after arrival abroad. In domestic cases the issue is whether the deportation gives rise to the alleged breach of human rights, e.g. because there is disproportionate interference in the UK of established family or private life of the claimant. In foreign cases the applicant has to establish a very grave state of affairs, amounting to a flagrant or fundamental breach, which in effect constitutes a complete denial of his or her rights. In terms of KBO v Secretary of State for the Home Department [2009] CSIH 30, the test that requires to be met in respect of domestic cases is different and less stringent. The petitioner's claim is a domestic case. She claims that her private life, which she has established in the United Kingdom, will be interfered with in a disproportionate manner by her deportation.

[9] The Secretary of State cancelled the removal directions in respect of the petitioner and on 24 March 2011 rejected the submissions made that the petitioner's deportation would breach Article 8 ECHR. The Secretary of State also certified that decision in terms of section 94(2) of the Nationality, Immigration and Asylum Act 2002.

Statutory provisions relative to the judicial review
[10] Section 3(5) of the Immigration Act 1971 provides:

"A person who is not a British citizen is liable to deportation from the United Kingdom if -

(a) The Secretary of State deems his deportation to be conducive to the public good ...".

Section 5(1) and (2) of the Immigration Act 1971 provide:

"(1) Where a person is under section 3(5) or (6) above is liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.

(2) A deportation order against a person may at any time be revoked by a further order of the Secretary of State, ...".

Section 92(1) of the Nationality, Immigration and Asylum Act 2002 provides:

"(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies."

Subsection 4(a) thereof provides:

"(4) This section also applies to an appeal against an immigration decision if the appellant -

(a) has made an asylum claim, or a human rights claim, while in the United Kingdom."

Section 94(2) thereof provides:

"A person may not bring an appeal to which this section applies (in reliance of section 92(4)(a) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded."

The effect of the certification in terms of section 94(2) is that the petitioner (who but for the certification had an in-country right of appeal under section 92(4)(a)) may not appeal to an immigration judge until after her removal from the United Kingdom as the Secretary of State considers her claim to be "clearly unfounded". The purpose of the petition for judicial review is to quash that certification and obtain an in-country right of appeal.

[11] Rules 390 and 391 of the Immigration Rules provide:

"390. An application for revocation of a deportation order will be considered in light of all the circumstances including the following:

(i) the grounds on which the order was made;

(ii) the representations made in support of revocation;

(iii) the interests of the community, including the maintenance of an effective immigration control;

(iv) the interests of the applicant, including any compassionate circumstances.

391. In the case of an applicant ... [who has been deported following a criminal offence] continued exclusion ...

(i) in the case of a conviction which is capable of being spent under the Rehabilitation of Offenders Act 1974, unless the conviction is spent within the meaning of that Act or, if the conviction is spent in less than 10 years, 10 years have elapsed since the making of the deportation order; or

(ii) in the case of a conviction not capable of being spent under that Act, at any time, unless refusal to revoke the deportation order would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees.]

will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered, either by change of circumstances since the order was made, or by fresh information coming to light which was not before ... or the appellate authorities, or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order ...".

The petitioner's submissions

[12] Against that factual background and the said statutory framework, counsel began his submissions by addressing me on the issue of where does the phrase "clearly unfounded" set the bar in section 94(2) cases? He referred me to the decision of the House of Lords in ZT (Kosovo) v The Secretary of State for the Home Department [2009] UKHL 6 and R on the Application of AK (Sri Lanka) v The Secretary of State for the Home Department [2009] EWCA Civ 447. It was his position on the basis of these cases that the correct analysis of this issue was contained in the observations of Lord Justice Laws in R on the Application of AK (Sri Lanka) v The Secretary of State for the Home Department at paragraphs 30-34. It was his position that having regard to these observations that in order to avoid a decision that her claim is "clearly unfounded" a more than fanciful prospect of success is sufficient for the petitioner. He submitted that this was a low hurdle. Mr Webster in his reply did not dispute that the foregoing was the test and that it was a low hurdle.

[13] Mr Caskie then turned to consider the scope of the review by this court. He submitted that the approach that this court should adopt was as explained by Buxton LJ in WM (DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraphs 8-11 and adopted in the decision of the Second Division in FO, Petitioner [2010] SLT 1087 at paragraph 23: that is, that the decision of the Secretary of State is challengeable only on Wednesbury grounds, with the rider that a decision will be challengeable as irrational if not taken on the basis of "anxious scrutiny". At paragraph 11, Buxton LJ set out the matters which the court must address as follows:

"First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... Secondly, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both these questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

Counsel found further support for his position in the recent decision of an Extra Division in Kishor Dangol v SSHD [2011] CSIH 20 where the court considered what was said to be a conflict between an evolving approach to challenges in the courts of England and Wales based on a failure to comply with Rule 353 of the Immigration Rules, which had been echoed in certain decisions in the Outer House, on the one hand, and the approach approved by the Inner House in FO, Petitioner and thus binding on judges of the Outer House on the other. This conflict was most clearly articulated and fully analysed by Lord Tyre in IM v The Secretary of State for the Home Department [2010] CSOH 103 between paragraphs 7 and 11.

[14] As observed by the court in Kishor Dangol Lord Tyre had in particular relied on the analysis of Carnwath LJ in R (YH) v The Secretary of State for the Home Department [2010] EWCA Civ.116 founding on the opinion expressed by Longmore LJ (with the agreement of his colleagues) in KH (Afghanistan) v The Secretary of State for the Home Department (2009) EWCA Civ 134, when he said:

"It is now clear from ZT (Kosovo) v SSHD ... that the court must make up its own mind on the question of whether there is a realistic prospect that an immigration judge applying the rule of anxious scrutiny, might think that the applicant will be exposed to a breach of article 3 or 8 if he is returned to Afghanistan. So the question is not whether the Secretary of State was entitled to conclude that an appeal would be hopeless but whether, in the view of the court, there would be a realistic prospect of success before an adjudicator."

The court in Kishor Dangol reading short at paragraph 7 of the Opinion, said this:

"Should a party in any future case wish to submit, and relies upon R (YH) and other cases, that the judicial approach to determination of petitions for judicial review similar to the present should not be as set out in FO (AP), then that question will require to be addressed in the Inner House, possibly by a full bench. Unless and until that happens we take this opportunity to remind judges sitting at first instance that the appropriate approach is that set out in the section of FO (AP) opinion clearly headed 'The law' as follows ...".

The Court in FO (AP) then says that guidance as to approach is to be found in the observations in the judgment of Buxton LJ in WM (DRC) which I have earlier quoted.

[15] It was counsel's position that although these remarks were made in terms of consideration of rule 353 of the Immigration Rules, there was no material difference between rule 353 case and a case in terms of section 94(2). He accordingly accepted that although in formal terms I was not bound by the decision in Kishor Dangol, nevertheless he submitted, it must amount at least to persuasive authority that the approach which the court should take in the instant case was that outlined by Buxton LJ and not the approach as followed by Lord Tyre in the case of IM, namely that identified by Carnwath LJ.

[16[ Counsel submitted that in the instant case the issue of the scope of the review was of some significance in that as was foreshadowed in the terms of the petition, the thrust of the argument to be advanced on behalf of the petitioner was a traditional Wednesbury unreasonableness attack based on the terms of the decision letter, namely: it was to be argued that the decision which the Secretary of State had come to was not one which was reasonably open to her. It was to be argued that the decision was in various respects Wednesbury unreasonable and that there was a complete lack of anxious scrutiny by the Secretary of State.

[17] Mr Caskie understood that it was to be the position advanced on behalf of the Secretary of State that I should follow the approach as set out by Carnwath LJ and adopted by Lord Tyre and a number of other Outer House Judges and not the approach set out by Buxton LJ and adopted by the Second Division. It would be argued he understood on behalf of the Secretary of State that in terms of the approach of Carnwath LJ, the reasoning contained in the decision letter was irrelevant in that the court would ask itself this question: Applying my own mind, did I agree that the Secretary of State was correct to certify the petitioner's claim as "clearly unfounded" on the basis of the information that was before him?

[18] He first contended that that was not the effect of the English line of authority analysed by Lord Tyre. Counsel said this: Where in any of the cases to which Lord Tyre referred was it said that where the Secretary of State in her decision letter had taken a wholly Wednesbury unreasonable approach that the decision should not be interfered with on normal judicial review principles?

In any event, he emphasised his position that the approach of the English courts was not the correct one and that the approach which I should follow was that set forth by Buxton LJ. It was his position that section 94 gave the power to make this decision to the Secretary of State and not to this court. There was no appeal from such a decision to this court. The only power to bring this matter before this court was in terms of judicial review and that accordingly normal judicial review principles should be applied.

[19] Counsel then turned to the decision letter (6/1 of process) and under reference to the detailed written argument contained in the petition, sought to support the general thrust of his argument that the decision letter was Wednesbury unreasonable. He developed his argument as follows:

At paragraphs 6-8 of the decision letter the Secretary of State set out the terms of immigration rule 391 and went on at paragraph 9 to say that this rule applied to the petitioner and that accordingly:

"Revocation of the Deportation Order in your client's case would only be appropriate if 10 years have elapsed since the making of the Deportation Order."

[20] Counsel submitted that the Immigration Rules make provision for the revocation of a deportation order at rules 390 and 391. He submitted that immigration rule 390 dealt with an application for revocation of a deportation order that is made prior to the person affected being deported. In contrast immigration rule 391 dealt with the situation of a person who had actually been deported from the United Kingdom. The petitioner was within the United Kingdom, she had not been deported. Accordingly rule 391 had no application to the petitioner.

[21] It was clear from paragraph 9 that in coming to her decision the Secretary of State had had regard to the terms of rule 391 and accordingly she had applied criteria that were not relevant to the petitioner's case and in proceeding in this manner she had acted in an irrational fashion.

[22] Secondly under reference to paragraph 23 of the decision letter it was submitted that it was perverse for the Secretary of State to hold that the three visits to Colombia therein referred to, the last of which was in 2003, demonstrated a continuing strong tie that linked the petitioner to Colombia. It was submitted that such a conclusion could not be arrived at based upon events that had occurred some eight years before. It was submitted that in addition to the reference in the said paragraph of the decision letter, when it came to the consideration of Article 8 at paragraph 29 the error was again repeated.

[23] Thirdly at paragraph 35 of the decision letter it is stated as follows: "Whilst it is accepted that you have a family/private life in the UK".

[24] Counsel went on to submit that this was clearly an error as at paragraph 32 it had been stated that it was not accepted on behalf of the Secretary of State that there was family life.

[25] At paragraphs 35 and 36 when dealing with interference with private/family life - the Secretary of State respectively says: "A decision will only lead to interference with family/private life where it is considered unreasonable for family life to be continued elsewhere" (emphasis added) and "it is considered that all family life could be maintained through visits" (emphasis added).

[26] At paragraph 40, in considering proportionality, there are two further references to family/private life.

[27] Lastly, in paragraph 52, where the Secretary of State sets out the decision that the petitioner's claim is clearly unfounded, again there is reference on two occasions to family/private life.

[28] Counsel reminded me that it had never been asserted on the petitioner's behalf that she had family life. He submitted, as I understood it, that these references to family life after it had been held by the Secretary of State that no family life existed, showed the clear irrationality of the decision and showed that no anxious scrutiny had been applied to the petitioner's case.

[29] Counsel then turned to paragraph 38 of the decision letter, where the Secretary of State at length deals with the issue of health care in Colombia. Counsel pointed out that there had been no submissions made to the Secretary of State in relation to any health problems suffered by the petitioner. Therefore he submitted that the reference in this paragraph to the position of health care in Colombia was wholly irrelevant and again tended to point towards there having been no anxious scrutiny by the Secretary of State of the petitioner's position. Counsel also pointed to this issue of healthcare in Colombia also being raised in paragraph 36.

[30] Counsel, moreover, pointed to paragraph 51 of the decision letter, which stated that it was appropriate to deport the petitioner to Jamaica. The petitioner of course was not being deported to Jamaica but to Colombia. Counsel submitted that this again clearly evidenced that no anxious scrutiny had been made of the petitioner's representations.

[31] At paragraph 18 of the decision letter the Secretary of State held that the new representations submitted had been previously raised during the petitioner's reconsideration hearing of 28 July 2009. The position, as advanced within the petition, was that this was inaccurate in that (1) the changes in the Article 8 jurisprudence relied upon had not taken place as at 28 July 2009; (2) the period for which the petitioner had not re-offended had increased from thirty seven months to almost six years. The numbers of years that the petitioner had been in this country had increased. Thus it was argued that the Secretary of State had not taken into account relevant material.

[32] In the context of changes in the article 8 jurisprudence counsel drew my attention to AW Khan v The United Kingdom (Application No.47486/06) a judgment of the Strasbourg Court of 12 January 2010. In this case the court held that there would be a violation of Article 8 of the Convention if the applicant were deported to Pakistan. The particular part of the factual matrix to which counsel directed me was at paragraph 7 of the judgment and was in the following terms:

"On 22 January 2003 he (the applicant) was convicted by a Crown Court of involvement in the importation of a Class A controlled drug. The conviction related to the attempted importation of 2.5kgs of heroin with an estimated street value of GBP 210,470. The applicant pleaded guilty. In the sentencing remarks the judge noted that he was not the principal in the criminal activity but concluded that he was a 'knowledgeable, able and willing assistant'. He was sentenced to seven years imprisonment but he was released on 3 April 2006 because of his good conduct in prison."

Counsel relied on this case in that he argued that it was significant because prior to it one issue which Strasbourg had taken a particularly firm line on regarding deportation cases and breach of Article 8 claims related to those convicted of drugs offences. This was the first case he was aware of where someone convicted of a drugs related offence had their deportation overturned on Article 8 grounds. He also drew my attention to the fact the decision of the court was based predominantly on the applicant's private life. He pointed to the fact that the offence of which Mr Khan was convicted was significantly more serious than that which the petitioner was convicted. It was his position that this was a matter to which the Secretary of State should have given consideration and that on the basis of it the petitioner's claim could not be said to be clearly unfounded.

[33] Counsel then submitted that in the assessment of proportionality the Secretary of State should have followed the guidance contained in particular in Maslov v Austria (Application No. 1638/03) (2008) 47 EHRR 20 and should, in particular, have recalled that ultimately the Boultif and Üner criteria are designed to help evaluate the extent to which the applicant could be expected to cause disorder or to engage in criminal activities. It was his position that on looking to the decision letter one could not see any such evaluation.

[34] Lastly, an argument was put forth at paragraph 24 of the petition that at paragraph 36 of the decision letter the Secretary of State made reference to the petitioner's deportation being proportionate in light of the needs of maintaining immigration control. The point made in terms of the argument was a short one, namely: the maintenance of immigration control in the circumstances of the present case was irrelevant in that the petitioner had never breached any immigration conditions imposed upon her.

[35] Counsel then took me to EB (Kosovo) v Secretary of State for the Home Department 2008 3 WLR 178 and to the speech of Lord Bingham of Cornhill at paragraph 7, p.182. Under reference to R (Razgar) v Secretary of State for the Home Department 2004 2 AC 368 paragraph 17, he set out the questions to be asked by an adjudicator hearing an appeal against removal on Article 8 grounds:

"In a case where removal is resisted in reliance on Article 8, these questions are likely to be:

(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his privacy or (as the case may be) family life?

(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?

(3) If so, is such interference in accordance with the law?

(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others?

(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"

Lord Bingham of Cornhill goes on to say at paragraph 12, page 184:

"Thus the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will of course take note of factors which have, or have not, weighed with the Strasbourg court. ... But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard edged or bright line rule to be applied to the generality of cases is incompatible with the difficult and evaluative exercise which Article 8 requires."

[36] Counsel argued that having regard to the terms of the decision letter there was no careful and informed evaluation of the facts of the petitioner's case. No detailed balancing exercise had been carried out. These were exercises which an immigration judge, looking at this matter, would have to carry out.

[37] Counsel finally took me to Huang v Secretary of State for the Home Department 2007 2 AC 167, the speech of Lord Bingham of Cornhill at page 187 paragraph 20, where he says:

"In an Article 8 case where this question is reached (the striking of a fair balance between the rights of the individual and the interests of the community), the ultimate question for the appellate immigration authorities is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, paragraph 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under Article 8 would be a very small minority. That is still his expectation but he was not purporting to lay down a legal test."

Counsel, under reference to paragraph 50 of the decision letter, submitted that the Secretary of State had further gone wrong in applying an exceptionality test. At paragraph 50 the Secretary of State says as follows:

"However, given the findings of the immigration judge and for the reasons set out above, it is felt that there are no exceptional or compassionate factors relating to your case to justify revoking a deportation order on the basis of human rights."

See also paragraph 51 where it is also said that there are no exceptional circumstances.

Counsel summarised his position as this: the decision letter did not pass muster for the reasons which he had advanced. The petitioner only sought reduction of the certificate and not of the refusal to revoke and she did this in that: it was the petitioner's position that she did not say that she would be successful before an immigration judge, however, she said that she was not bound to lose before an immigration judge.

The reply for the Secretary of State
[38] Counsel began his submissions by turning to the issue of the scope of the review. He said that it was important to remember that the decision letter contained two separate decisions:

(a) a decision on the application to revoke the deportation order and

(b) a decision in terms of section 94(2) to certify the application as clearly unfounded.

The challenge made by the petitioner related to only the second of those decisions. The practical consequence of that was that the only issue live before me was the decision on section 94(2).

[39] He accepted that these were judicial review proceedings and I must address the question on judicial review grounds. Thus the nature of the question before me was the rationality of the decision of the Secretary of State.

[40] However, it was his submission that in effect in deciding the rationality of the decision of the Secretary of State it required this court to make an assessment as to whether the petitioner's claim was clearly unfounded. In other words, it was his position that I should follow what for shorthand purposes could be described as the line of authority founded on ZT (Kosovo) and RC (YH).

[41] It was his position that the analysis in that line of authority is correct thus: if I were to take the view that the petitioner's claim was clearly unfounded, because that was a black and white question, then there was no scope for an immigration judge to come to a rational alternative conclusion because by definition by taking the view that the claim was clearly unfounded meant that there was no scope for an immigration judge to hold that there was any merit in the case.

[42] It flowed from what he had above said that therefore whatever, what he described as the infelicities in the decision of the Secretary of State, they were of no practical utility as regards reduction of the decision on certification. It was his position that I need not concern myself with how the Secretary of State had dealt with the merits of the claim for revocation. It was his position that whatever was said by Mr Caskie on behalf of the petitioner about the quality of the decision letter was nothing to the point.

[43] It was for this court to take a view as to whether the Secretary of State's decision was right. That was a question which could only be answered in one of two ways, yes or no. There was no range of answers. There cannot be degrees of clearly unfounded. It is either clearly unfounded or not.

[44] As regards the decision in Kishor Dangol, it was his position that this was only strictly relevant to Rule 353 cases and did not affect section 94(2) cases.

[45] In support of his position that this was the appropriate approach, he referred me to ZT (Kosovo) v Secretary of State for the Home Department. He referred me firstly to page 355, paragraph 22 where in the speech of Lord Phillips of Worth Matravers, he says in relation to what is the appropriate test in a section 94 certification case, this:

"The test of whether a claim is clearly unfounded is a black and white test."

He goes on at paragraph 23 to say this:

"There is no way that a court could consider whether her (the Secretary of State's) conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational."

It was counsel's position that each of the judges in that case in the House of Lords had taken the same approach: see Lord Hope of Craighead p.365 at paragraphs 52-55; Lord Carswell at paragraph 65, p.368 Lord Brown of Eaton under Heywood at paragraph 74, p.370 and Lord Neuberger of Abbotsbury at paragraph 83, p.372.

[46] Counsel concluded his submissions on the scope of the review by saying that what this court should look at was whether the petitioner's claim was clearly unfounded so that another immigration judge, on the facts before the Secretary of State, would be bound to reject the appellant's claim.

[47] As to what was before the Secretary of State, it was his position that this was the two decisions of the judges below and the representations made to the Secretary of State in 6/2 of process.

[48] He submitted that that was the material at which the court should look and decide if the case was clearly unfounded and he submitted that it was clearly unfounded as it amounted to little more than that the petitioner, had friends and acquaintances here and had been here for a number of years. No family life was asserted.

[49] The only difference on the facts before the immigration judge in 2008 and today was that the petitioner had added a further number of years in this country. He reminded me that most of that had been taken up with the petitioner challenging the Secretary of State unsuccessfully in the Courts.

[50] As regards the essential facts in the case, he referred me to paragraph 43, of the immigration judge's decision of 6 October 2008 (6/3 of process), where the following findings were made:

"The appellant has lived in the UK for about twenty years. She does not have family life in the Article 8 sense. She has a private life. She has supportive friends in Edinburgh and London. She has extended family in London and Colombia. She is willing to take such unskilled work as she can find. She has one criminal conviction ... The risk of re-offending is low."

Then at paragraph 58, the following finding was made:

"On the other hand she did not grow up and receive her education in the United Kingdom. She retains social, cultural, linguistic and family ties with Colombia."

It was his position that that amounted to a very weak case. It was his position that only in exceptional circumstances would such a case, relative to the personal circumstances, outweigh the public interest.

[51] It was counsel's submission that the further representations made in 6/2 of process added very little to the petitioner's case. The letter did no more than say that the petitioner had been a few more years in this country. However, there was not said to be any change in her private life. It was still accepted that she had no family life in this country. She had no child and she had no spouse with whom she was living. That he submitted remained a very weak claim in that against those circumstances had to be weighed the criminal conviction which he submitted was of considerable weight. When making the assessment of proportionality it had to be remembered that in R (Razgar) v Secretary of State for the Home Department at paragraph 20 in the speech of Lord Bingham of Cornhill, when considering if interference was proportionate to the legitimate public aim sought to be achieved, it was observed:

"although the Convention rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate. In the present case the Court of Appeal had no doubt ... that this overstated the position. I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases ..."

He submitted that given that statement of the law it could not be shown that the decision in the circumstances of the petitioner's case was disproportionate.

[52] He submitted that against that test there was no room for an immigration judge rationally to hold that the petitioner had any chance of success.

[53] On the petitioner's side of the equation, there was only her private life, and for the reasons he had already advanced, that made a very weak case and against that there was the criminal conviction and its nature.

[54] As regards the Khan case upon which counsel for the petitioner had relied, he submitted that the circumstances in that case were far removed from the circumstances in the present case. In that case, and he submitted this was the critical difference, the petitioner had come to this country when he was aged 3. He was 35 by the time of the decision and had accordingly spent 32 years in this country. He also sought to argue that the case to some extent had involved family life and did so under reference to paragraphs 35 and 36 of that decision.

[55] For these reasons he submitted that I should refuse the petition.

Discussion
[56] The petitioner here seeks to challenge the decision to certify her claim as "clearly unfounded". The purpose, as earlier noted, is to allow her to challenge the decision to deport her by way of an in-country appeal.

[57] There was a measure of agreement as to the legal framework against which the Secretary of State's certification requires to be considered.

[58] It is common ground that in order to avoid a decision that her claim is clearly unfounded a more than fanciful prospect of success is sufficient for the petitioner.

[59] Thus in order to certify, in terms of section 94(2), the claim must, after anxious scrutiny, be so devoid of merit that it is bound to fail. The matter must be clear-cut. If an appeal might succeed, then the matter should not be certified.

[60] However, what was in dispute between the parties was this: what was the role of the court?

[61] On the one hand, reading short the petitioner's position, was that I should approach the matter on Wednesbury grounds and the court should follow the guidance of Buxton LJ as earlier set out. The respondent's position, reading short, was this: the question for the Court was whether I agree with the proposition that the Secretary of State was correct on the basis of the material available to her to certify the petitioner's claim as clearly unfounded. Underlying this approach contended for by Mr Webster was this: even if the decision was unlawful there was no point in questioning the decision, since the outcome of any further consideration of the matter was bound to be the same. Thus he invited the Court to exercise its discretion not to quash the decision even if it was unlawful.

[62] I have had regard to the full and careful analysis of the authorities by Lord Tyre in IM, Petitioner. However, I note that since Lord Tyre's opinion the Court of Appeal has revisited this issue in R on the application of MN (Tanzania) v The Secretary of State for the Home Department [2011] EWCA Civ 193 to which case I was unfortunately not referred. Kay LJ looks at the test in rule 353 cases and reviews the various authorities. Having done so at paragraph 15 he says:

"I agree with Laws LJ that a careful analysis of ZT does not provide authority for the proposition that anything other than Wednesday is the correct test for review in Rule 353 cases.

He goes on to say at paragraph 16 as follows:

Thirdly, to have a differential approach as between Rule 353 and section 94 cases is not illogical. In Rule 353 cases the applicant has already had full recourse to the immigration appellate system. Rule 353 is in the form of an extra-statutory concession. In section 94 cases, the Secretary of State is empowered to deny the applicant access to the immigration appellate system at the outset. A more protective approach to review in that situation is understandable. For my part, I would also consider an assimilation of the tests to be justifiable but, on the authorities, I consider that we are bound to continue to apply WM and TK in Rule 353 cases."

I note that in a very recent case MAS V The Secretary of State for the Home Department 2011 CSOH 95 Lord Malcolm adopted the decision in MN (Tanzania) (see: paragraph 12). Again this was an authority to which I was not referred.

[63] In addition I note that in Kishor Dangol the court having reviewed Lord Tyre's analysis at paragraph 7, observed that the law in Scotland was as set out by Buxton LJ in the passage I have earlier quoted in full.

[64] The court in Kishort Dangol then observes, at the end of paragraph 7, as follows:

"That is a clear and binding statement of the procedure that generally ought to be followed. There will no doubt be cases, as in other fields of judicial review, in which it is appropriate for the matter in issue to be determined by the reviewing judge rather than remitted to the original decision-maker. However for the moment they remain the exception rather than the rule."

I recognise that the Opinion of the Court in Kishor Dangol was given in the context of a challenge to a decision in terms of Immigration Rule 353. Further the decision in FO (AP) was given in the context of Immigration Rule 353. Accordingly, I do not believe that I am formally bound to follow either Kishor Dangol or FO (AP). However, I am wholly unable to identify any material difference as to their nature between Rule 353 cases and section 94(2) cases, both involve a black and white decision and therefore I consider that the court's observations in Kishor Dangol must equally apply to a judicial review challenging a section 94(2) certification. I am not persuaded that there should be a different approach between Rule 353 cases and section 94 cases. I accept the analysis of Lord Tyre in IM Petitioner that the approach in both should be the same although disagreeing with him as to what that approach should be. In so far as MM suggests that there should be such a different approach I would respectfully disagree with that. I observe that Kay LJ's final remarks on this issue are at paragraph 16 as follows:

"For my part, I would also consider assimilation of the test (in section 94 and Rule 353 challenges) to be justifiable ...".

[65] With that review of the case law I have concluded that the correct approach here is that set forth by the Extra Division in Kishor Dangol namely: that Judges should not adjudicate on the issue before the Secretary of State. Rather a traditional judicial review approach should be taken, following the guidance of Buxton LJ.

[66] Having set out the legal framework, I now turn to my decision in this case.

[67] I of course accept as emphasised by Mr Webster that there are two decisions made in the Secretary of State's letter, first, not to revoke the deportation order and secondly, to certify in terms of section 94(2) and that only the latter of these is challenged. However, in my view, these two decisions are inextricably linked in this sense: the Secretary of State in certifying must have had regard to the same factors as she relied upon in relation to the decision not to revoke the deportation order. The decision letter can in my view not be understood on a proper construction in any other way. Thus her reasoning in relation to this first decision is of relevance when considering the issue of certification.

[68] The reasoning of the Secretary of State (in reality the reasoning of her official) is in my view wholly unsatisfactory.

[69] The Secretary of State in her decision letter begins her consideration of the matter on the basis of a clear error in law. At paragraph 9 it is stated:

"Your client's application has been considered in accordance with paragraph 390 and 391 of the Immigration Rules (as amended). Revocation of the Deportation Order in your client's case would only be appropriate if 10 years have elapsed since the making of the Deportation Order".

For the reasons advanced by Mr Caskie Rule 391 has on a proper construction no application to the petitioner who is within this country and has not already been deported. Rule 391 only applies to persons already deported. Accordingly, the Secretary of State has had regard to and applied criteria to the consideration of whether the petitioner's deportation order should be revoked, which were irrelevant. Applying the wrong criteria must in my opinion be a material error of law.

[70] In addition to having regard to an irrelevant consideration, this reference to paragraph 391 also, when taken with other factors to which I will later refer, points to a lack of a proper level of scrutiny to the petitioner's individual circumstances.

[71] Secondly overall, this decision letter, in my opinion, bears all the hallmarks of one in which no proper consideration was given to the petitioner's particular circumstances and that the necessary level of scrutiny was not applied to her representations.

(a) At paragraph 32 it is stated that:

"It is therefore not accepted that your client has a family life in the UK."

Thereafter, despite this finding, at paragraph 36 consideration is given in the context of whether there is any interference with private/family life as to how family life could be maintained. After paragraph 32 there is repeated reference to family/private life. These references in my view tend to confirm when taken together that no anxious scrutiny was being applied to the petitioner's case. References should not have been made to family life given the earlier finding of the Secretary of State that there was no family life.

(b) At paragraph 38 detailed consideration is given to what health care is available in Colombia.

The petitioner had never asserted as part of her case that she suffered from ill health and that she could not be offered appropriate health care in Colombia. Accordingly, what is stated in this lengthy paragraph is entirely irrelevant to the representations made on behalf of the petitioner.

In addition, I note that at the end of paragraph 36, dealing with private/family life, there is the following sentence:

"It is therefore accepted that health care is available to your client's friends and family in Colombia."

This sentence in no way fits in with what has been said up to that point in paragraph 36 and makes no sense in the context of what is said in paragraph 36. Nor of course does it make any sense in a wider context given that health care was not an issue in this particular case. In these circumstances not only are irrelevant considerations being had regard to, but yet again such references point clearly to a lack of anxious scrutiny.

(c) At paragraph 51 it is stated: "It is appropriate to deport you to Jamaica".

The reference to Jamaica is clearly wrong, this case has nothing to do with Jamaica but rather involves deportation to Colombia. On its own that mistake would amount to little. However, when taken in the context of the paragraph relative to health care in Colombia, consideration of how family life can be maintained where no family life is asserted and consideration of an immigration rule, which has no relevance to the present case, it appears to be a point which becomes of some substance.

These sections of the decision letter, when taken cumulatively, in my judgment, demonstrate a complete absence of anxious scrutiny on the part of the Secretary of State.

[72] This decision letter, in my judgment, appeared to be what was described during the submissions before me as a "cut and paste job" where sections have been taken from other decision letters and dropped into this letter, although they have absolutely no relevance to this letter. I believe that this type of approach in such a letter demonstrates clearly that no proper consideration was being given to the petitioner's individual circumstances.

[73] Thirdly, the Secretary of State's decision letter at paragraph 18, says this:

"The new representations submitted have been previously raised during your client's reconsideration hearing ...".

There then follows in paragraphs 18, 20 and 21 certain quotations from the decision 6/4 of process.

[74] Looking at the Secretary of State's reasoning at this part of her decision, her position appears to be that the additional representations have already been dealt with and accordingly do not require further consideration.

Two of the additional representations made were:

·       The appellant's history of non re-offending since the conviction in August 2005.

·       The increase in the number of years that the appellant has been in the United Kingdom.

It is true to say that the number of years that the appellant had been in the United Kingdom was a factor which had been earlier referred to. However, what was being particularly relied on in the additional representations was the increase in the number of years that the appellant had been in the United Kingdom since the matter had last been considered and the increase in the number of years of non-re-offending since the matter had last been considered. These matters by definition would not previously have been considered.

[75] In light of the authorities to which I was referred these matters are not irrelevant. In addition, given the time gap from 2008 (when the matter was first considered) to 2011, these changes in circumstances could not be said to be wholly immaterial. Thus in my view they required to be considered and could not be dismissed without consideration by the Secretary of State as in my judgment she has done. The precise materiality of these factors, and how they would weigh in any balancing exercise, would clearly be a matter for the Secretary of State, however, I do not believe that the Secretary of State was entitled to have no regard to these. She has accordingly, in my opinion, failed to have regard to material factors.

[76] The third factor referred to in the letter making further representations was a change in respect of the jurisprudence of Article 8. Two specific cases were referred to in the letter and these cases have been given consideration at paragraphs 43 and 44 of the decision letter and I can identify no error in the way that they have been considered.

[77] Fourthly it is clear from a consideration of the case law that the Secretary of State may have regard to public interest in making her decision on matters of this type.

[78] That public interest may include public confidence in the administration of the system by which control is exercised over non-British citizens who enter and remain in the UK.

[79] There are at least two other important facets of public interest which have been identified in the cases and these are, as set out by Wilson LJ in OH (Serbia) (2008) EWCA Civ 694 at paragraph 15:

"Another important facet is the need to deter foreign nationals from committing serious crimes by leading them to understand that whatever the other circumstances, one consequence can well be deportation;

a further important facet is that a deportation order is an expression of society's revulsion about serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes."

At paragraph 39 the Secretary of State, without further elaboration, holds when considering whether any interference with Article 8 rights is in accordance with the law and in pursuit of a reasonable aim, says that the maintenance of an effective immigration control was had regard to and founded upon.

[80] It was argued in the petition, though not particularly elaborated upon in oral submission, that in the absence of any breach by the petitioner of any immigration rule, this was not a relevant consideration.

[81] In my view the phrase "the maintenance of immigration control" is wide enough to cover someone who is in this country and has not breached any immigration conditions imposed upon her. The petitioner is not a British citizen and the public interest includes public confidence in the administration of the system by which persons such as her both enter and thereafter remain in the country, in particular following the commission of an offence. I do not find that there is any merit in this particular argument.

[82] Fifthly, following the guidance laid down in Üner and reiterated in Mazlov at paragraph 68, any immigration judge in considering the petitioner's claim would require to have regard to a large number of factors including those laid down in the Strasbourg jurisprudence.

[83] It is important to note that the court in Mazlov said this about these factors at paragraph 70:

"The court would stress that while the criteria which emerged from its case law and are spelled out in the Boultif and Üner judgments are meant to facilitate the application of Article 8 in expulsion cases by domestic courts, the weight to be attached to the respective criteria will inevitably vary according to the specific circumstances of each case. Moreover, it has to be borne in mind that where, as in the present case, the interference with the applicant's rights under Article 8 pursues, as a legitimate aim, the 'prevention of disorder or crime' ... The above criteria ultimately are designed to help evaluate the extent to which the applicant can be expected to cause disorder or to engage in criminal activities."

[84] One of the factors which the Secretary of State relies upon in refusing to revoke the deportation order is that removal is proportionate to the need for the prevention of disorder and crime (see paragraphs 42 and 45). She concludes that the petitioner's removal is proportionate in pursuit of the legitimate aim of preventing disorder and crime as well as maintaining effective immigration control. There appears in the Secretary of State's decision to be no detailed examination of the issue of risk. There is no assessment of the risk which the petitioner is likely to present in the future of re-offending.

[85] The consideration of risk appears to start and finish with the fact that the petitioner has been convicted of a particular type of crime and sentenced to a particular length of imprisonment.

[86] I am not persuaded that in the circumstances of this case that is sufficient.

[87] There do appear to me to be certain other factors of relevance in considering the risk of this petitioner committing further crimes and these are:

(1) That the petitioner when she committed this crime was a first offender.

(2) That she did not offend until aged 42.

(3) That she was at the time of the consideration by the Secretary of State then aged 47.

(4) That she is female.

In my opinion, these factors are relevant and should weigh in considering the likelihood of the petitioner re-offending.

[88] These are circumstances which should have been placed in the balance when considering whether an immigration judge would consider it a proportionate response to return this lady to Colombia. It is stressed in the authorities to which I was referred that cases of this type are fact sensitive and require careful and informed evaluation of the facts. Relative to risk I am not persuaded that the Secretary of State has carried out such an exercise.

[89] Sixthly, as regards the finding at paragraph 23 of the decision letter that the petitioner's visit to Colombia clearly demonstrate "continuing strong ties that link your client to Colombia". I cannot see how three visits, the last of which finished on 25 June 2003, entitled the Secretary of State to infer continuing strong links as at 2011. These visits on their own, and the Secretary of State refers to nothing else in that part of her decision, do not form a proper basis for such a conclusion. Such a conclusion does not it seems to me automatically follow.

[90] As regards the use of the phrase exceptional factors and exceptional circumstances in paragraphs 50 and 51 of the decision letter it appears that the Secretary of State was seeking to apply an exceptionality test, and that in the absence of the petitioner producing something exceptional she could not be successful. In light of the observations of Lord Bingham of Cornhill in Huang v Secretary of State for the Home Department at paragraph 20 this is an incorrect approach.

[91] Lastly, the Secretary of State in failing to consider the case of Khan has in my opinion failed to consider a material matter.

[92] In my judgment, against the background of this case, the decision in Khan is of considerable significance. At paragraph 58 of 6/3 of process, the decision of the immigration judge on 21 November 2008, he says this:

"While it was ingeniously advanced that this strengthens the private life aspect, the problem for the appellant is that her circumstances fall well short of any reported cases in which the European Court, the domestic courts or this tribunal have held that private life prevents removal. No doubt if there was any case to assist her, the appellant would have referred to it. The trend of authority is against her."

[93] Counsel for the petitioner advanced the argument that Khan was a material change in the way that the courts, up till then, had looked at such Article 8 claims. As I understood it he was seeking to advance the point that the trend of authority, as referred to by the immigration judge, had to some extent changed. Mr Caskie very fairly accepted that the change was in the context of somebody who had been in this country from a very early age and that this did not apply to the petitioner. However, as he pointed out, this was a case in which the private life of the petitioner was said to be sufficient to overcome a very serious conviction, namely: a breach of the Misuse of Drugs Act.

[94] In my view Khan has to be looked at in its context and of course it has to be remembered that it is a single case. However, it is at least arguable that it evidences a slight softening of the line taken to that point by the courts in cases involving drugs and where family life was of no decisive weight (see paragraph 47 of Khan) and therefore it is a matter to which the Secretary of State ought to have turned her mind and given consideration. In my view this was a further material factor to which the Secretary of State did not have regard.

[95] Looking to the Secretary of State's letter, there is one further matter to which I would wish to draw attention. At paragraph 52 the issue of certification is dealt with. The wording is such that on a fair reading of the whole paragraph what it says is this: the Article 8 claim having failed then automatically it follows that a certificate should be granted in terms of section 94(2). Certainly there is no recognition of the very different test which must be applied to certification than when considering the Article 8 claim.

[96] Overall I consider the Secretary of State had regard to irrelevant considerations; failed to have regard to relevant material matters and wholly failed to exercise anxious scrutiny in reaching a decision that it was appropriate to grant a certificate in terms of section 94(2). In my view she reached a decision which was unreasonable in Wednesbury terms. Accordingly the decision is unlawful.

Decision

[97] For all these reasons I shall uphold the petitioner's plea-in-law, grant the application for judicial review and reduce the decision of the Secretary of State dated 24 March 2011 to certify the petitioner's claim as clearly unfounded in terms of section 94(2) of the Nationality, Immigration and Asylum Act 2002. I will remit the matter to the Secretary of State for further consideration. In the meantime I shall reserve the question of expenses.