Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 20
P132/11	OPINION OF LORD DRUMMOND YOUNG in the Petition M.E (FE) Petitioner; for Judicial review of a decision made on 7 January 2011 by the Secretary of State for the Home Department not to accept that representations on the half of the petitioner constitute a fresh claim for asylum ­­­­­­­­­­­­­­­­­________________

Act: Caskie; Drummond Miller LLP

Alt : Lindsay, QC; P Johnston, Office of the Solicitor to the Advocate General

3 February 2012

[1] The petitioner is a citizen of Iran who arrived in the United Kingdom on 7 or 8 February 2007. She has two children, a daughter born on 31 October 1991 and a son born on 1 January 1995. Both children were born in Iran but arrived in the United Kingdom with their mother, and live with her. On 20 February 2007 the petitioner claimed asylum, but that application was refused on 21 March in the same year. She appealed, but the appeal was dismissed on 3 May 2007 on the basis that her account of events in Iran was not accepted, and on 12 June a Senior Immigration Judge refused to order a reconsideration of this determination. The petitioner's appeal rights became exhausted on 14 September 2007. Further representations were made on her behalf on 11 January 2008 and subsequent dates, but these were all refused shortly after they were made. The last representations made on her behalf were for leave to remain in the United Kingdom. They were presented on 17 December 2010, and were refused by a decision letter dated 7 January 2011. It is that decision letter that is under challenge in the present proceedings.

[2] The petitioner's last representations proceeded on the ground that return to Iran would breach article 8 of the European Convention on Human Rights, as the petitioner claimed to have established a private and family life in the United Kingdom (decision letter, paragraph 7). A number of documents were presented in support of this claim, including letters and certificates relating to the education of the petitioner's two children.

[3] In considering the petitioner's representation seeking leave to remain, the Secretary of State is obliged to follow rule 353 of the Immigration Rules, made under the Immigration Act 1971, sections 1(4) and 3(2). This provides as follows:

"When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection".

In dealing with an application under rule 353, the Secretary of State requires to consider three matters sequentially. First, she must consider whether in her view the representations mean that the petitioner should now be granted leave to remain on refugee or human rights grounds or in exercise of discretion that the Secretary of State has to grant leave to remain to any person that she chooses. If that question is answered in the negative the Secretary of State must consider a second question: whether the submissions have been considered previously. In this connection it is irrelevant whether the new evidence or submissions were available previously, although that might affect their reliability. Thirdly, the Secretary of State must consider whether there is a "realistic prospect of success" in an appeal to the First-tier Tribunal (Immigration and Asylum Chamber). That is a low test: WM (DRC) v Secretary of State for the Home Department, [2006] EWCA Civ 1495; AK (Sri Lanka) v Secretary of State for the Home Department, [2009] EWCA Civ 447.

[4] The Secretary of State accepted that the documents lodged on behalf of the petitioner had not been previously considered (decision letter, paragraph 8). The question that arose was accordingly whether, when these were taken together with the previously considered material, they created a realistic prospect of success for the petitioner, in the sense that an Immigration Judge, applying the rule of anxious scrutiny, might think that she would be exposed to a real risk of persecution on return to Iran or to a breach of the European Convention on Human Rights. The Secretary of State noted that the Immigration Judge who heard the petitioner's earlier appeal had concluded that she was an incredible witness, and that those findings would be taken into consideration by another Immigration Judge (decision letter, paragraphs 12 and 13). The Secretary of State then considered a claim by the petitioner that she should be permitted to remain in the United Kingdom owing to her state of health. That was rejected, and the petitioner now accepts that this aspect of the decision letter cannot be challenged.

[5] The decision letter then goes on to consider the claim based on the right to private and family life under article 8 of the European Convention on Human Rights. This is the claim that is maintained in the present proceedings. Three particular factors appear to be relied on. First, it is said that the interference with the petitioner's family life that removal would entail is not justified by the need that the United Kingdom maintain an effective system of immigration control; the prejudice to the petitioner would be disproportionate to the benefits to the system. Secondly, reliance is placed on the delay that has occurred in removing the petitioner from United Kingdom, a period of four years or thereby. This is said to indicate that the removal of the petitioner has not been regarded by the Secretary of State as a matter essential for the maintenance of a system of immigration control. This, it is alleged, was strengthened by the fact that there had been significant failures to remove persons living in the United Kingdom after the refusal of their asylum claims, and the overall picture that emerged was of a system that was seriously dysfunctional. Once again, arguments based on proportionality were advanced. Thirdly, the appellant's son was 16 at the date of hearing. That engaged the operation of section 55 of the Borders, Citizenship and Immigration Act 2009, which reflected the obligations of the United Kingdom under the United Nations Convention on the Rights of the Child and required the Secretary of State to have in any decision regarding immigration the welfare and best interests of the child as a primary consideration. It was said that that obligation had been breached. I will deal with each of these aspects in turn.

[6] Before I do so, however, I should comment briefly on the role of the court in considering a challenge to a decision by the Secretary of State in this context. It is now clear, at least in Scotland, that any challenge to the Secretary of State's decision proceeds on standard grounds for judicial review, including irrationality and unreasonableness in the sense that no reasonable person in the Secretary of State's position could have reached the decision that she did (Wednesbury unreasonableness): FO v Secretary of State for the Home Department, 2010 SLT 1087, at paragraph [23]; Dangol v Secretary of State for the Home Department, 2011 SC 560, at paragraphs [6]-[7]; WM (DRC) v Secretary of State for the Home Department, [2006] EWCA Civ 1495. On this approach, if the decision of the Secretary of State is not taken on the basis of anxious scrutiny, it will be held irrational. This has two consequences: first, the court must consider whether the Secretary of State has asked the correct question, which is not whether the new claim should succeed but whether there is a realistic prospect that the First-tier Tribunal, applying the rule of anxious scrutiny, might think that the applicant had a good case; and secondly, the court must consider whether the Secretary of State has satisfied the requirement of anxious scrutiny. If these questions cannot both be answered in the affirmative, an application for judicial review must be granted. In certain English cases it has been held that, instead of proceeding on standard judicial review lines, the court should itself decide whether there is a realistic prospect of success, rather than applying the test of irrationality or Wednesbury unreasonableness, but that is clearly not the law in Scotland. At this point I should record that I consider that the decision letter indicates throughout that the petitioner's case was approached with anxious scrutiny, and I did not understand that the challenge to the Secretary of State's decision proceeded on this ground. Instead, the issue is whether the Secretary of State had reasonable grounds for concluding that there was no realistic prospect of success before the First-tier Tribunal.

[7] The first argument for the petitioner is that the interference with her family life as a result of removal is not justified by the requirement of an effective system of immigration control. In considering the application of article 8 of the Convention to an appeal against removal, the questions that must be considered by an Immigration Judge are those stated in R (Razgar) v Secretary of State for the Home Department, [2004] 2 AC 368, at paragraph 17; approved in EB (Kosovo) v Secretary of State for the Home Department, [2008] 3 WLR 178, at paragraph 7:

"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 private 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 well-being of the country, for the prevention of disorder or crime, for the protection of health or 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?"

In the present case it is not in dispute that the appellant has a family life with her two children in Scotland. Nor is it in dispute that removal will interfere with that family life, in the sense that the whole family will require to move to Iran. That can potentially engage the operation of article 8. Such removal is, however, justified by law. Consequently the first three questions are not contested. The critical questions are accordingly whether such interference is necessary in the interests of a legitimate public end, and whether it is proportionate to that end.

[8] The Secretary of State's decision letter relies on the maintenance of the system of immigration control. The decision letter refers (at paragraph 39) to the following passage in the speech of Lord Bingham in R (Razgar) v Secretary of State for the Home Department, supra, at paragraph 19:

"Where removal is proposed in pursuance of a lawful immigration policy, question (4) will almost always fall to be answered affirmatively. This is because the right of sovereign states, subject to treaty obligations, to regulate the entry and expulsion of aliens is recognized in the Strasbourg jurisprudence... and implementation of a firm and orderly immigration policy is an important function of government in a modern democratic state. In the absence of bad faith, ulterior motive or deliberate abuse of power it is hard to imagine an adjudicator answering this question other than affirmatively".

A similar point is made in Huang v Secretary of State for the Home Department, [2007] 2 AC 167:

"The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under article 8(2). There will, in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if the system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; they need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on".

[9] The petitioner submits (article 21 of the petition) that the Secretary of State is required to consider whether the decision in the present case will in fact contribute to the maintenance of effective immigration control. On the basis of the petitioner's own immigration history, it is suggested that there is no effective system of immigration control to be maintained. The petitioner has had no leave to remain in the United Kingdom but no effective action has been taken against her to remove her and her family. In developing this argument, counsel referred to a Home Offers policy document, "Case Resolution Directorate-Priorities and Exceptional Circumstances", published in late 2010 or early 2011. This discloses that an effort was being made to deal with cases that were outstanding from before March 2007, when a new system was introduced for dealing with asylum claims. The aim was to include all such cases by July 2011. Reference was further made to a letter circulated by the UK Border Agency on 22 March 2011, written by an officer of the Case Resolution Directorate. This revealed that 403,000 such applications had been concluded by 31 January 2011. This, it was said, undermined any argument that there was an effective system of immigration control.

[10] In my opinion this argument must be rejected. It may be that prior to March 2007 significant problems were experienced in the system of immigration control, and that these took a significant period to be dealt with. The fact that a system experiences difficulties, however, does not mean that there is no system. Nor can it be argued that, because a system does not operate effectively in every case, it cannot be applied in any particular case. Yet that is in effect what the petitioner is arguing: because the system of immigration control had not operated effectively for a number of years prior to 2010, it should not apply in her case. An analogy can be drawn with the criminal law. Many crimes, almost certainly the majority, go unpunished. Using an argument similar to that advanced for the petitioner, it could be said that in consequence no one should be prosecuted or punished for crime. That is manifestly absurd. Consequently I reject this argument: no Immigration Judge could conclude that the problems experienced at a general level by the system of immigration control mean that the appellant should not be removed from the United Kingdom.

[11] In developing his argument, counsel for the petitioner placed some reliance on the delay that had occurred in removing the petitioner from the United Kingdom. (A further, more general, argument based on delay is considered below at paragraphs [14] et seq). Counsel referred to a passage in the opinion of Lord Bingham in EB (Kosovo) v Secretary of State for the Home Department, supra, at paragraph 16, where it is pointed out that delay may be relevant in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, "if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes". In that particular case evidence was available to the effect that the applicant's cousin, who had entered the country and applied for asylum at the same time and whose position was not said to be materially different, was granted exceptional leave to remain during the two-year period that was taken before the Secretary of State corrected an erroneous decision in respect of the applicant. The important point that is made in that passage is that delay may be relevant as an element disclosing a system that produces unpredictable, inconsistent and unfair outcomes. The particular comparison with the applicant's cousin in that case was clearly highly pertinent, because it disclosed that two like cases were treated differently. It is obvious that delay might easily be relevant in a situation of that nature. In the present case, however, no comparison is made with particular cases that were treated differently from the petitioner's case. To some extent reliance was placed on data that indicated considerable delays and the grant of leave to remain in some of those cases, but without more specific information it is quite impossible to draw the sort of comparison that was involved in EB. In particular, on the basis of the averments made by the petitioner, it cannot be said that there is anything inconsistent or unpredictable about the decision to remove her; all that can be said is that there has been delay, perhaps of a systemic nature. I accordingly conclude that the Secretary of State was entitled to hold that there would be no realistic prospect of success in any appeal to the First-tier Tribunal on the foregoing basis.

[12] In a refinement of the foregoing argument, it was submitted that any benefit to the system of immigration control resulting from the removal of the petitioner and her family was disproportionate to the interference with their article 8 right to family life. This argument too must in my opinion be rejected. In relation to proportionality, the approach that must be taken is set out in Huang v Secretary of State for the Home Department, supra, at paragraph 20:

"In an article 8 case where [the question of proportionality] is reached, the ultimate question for the appellate immigration authorities 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 appellant 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, he asked in addition whether the case meets a test of exceptionality".

In EB (Kosovo) v Secretary of State for the Home Department, supra, Lord Bingham states at paragraph 12:

"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. It will, for example, recognize that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. 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".

[13] In the present case the removal of the petitioner will involve the removal of her entire family to Iran; her daughter and son will go with her. Thus the issues referred to in the foregoing passage from EB do not arise. The disruption to family life relates not to the internal workings of the family but to the relationships of the individual family members with outsiders. In this respect the most powerful issue may be the fact that the petitioner's son is at school in Scotland and her daughter is undergoing further education here. Nevertheless, these are features that will be encountered almost universally in cases where the family to be removed includes a child of school age, and having a child in further education is likewise a very common occurrence. It cannot be argued that these are factors that by themselves override the fundamental objective of enforcing an effective system of immigration control; the legitimacy of that objective has been recognized in a succession of cases both within the United Kingdom and at Strasbourg (as in the passage from Razgar quoted above at paragraph [8]). The same point can be made about the family's other relations with Scottish people and institutions. Almost anyone will build up relationships with others in the community in which he or she lives, and to allow those to override an adverse decision on immigration status, invoking article 8, would completely subvert any effective system of immigration control. Of course, in some cases special factors may be present which suggest that a family's ties to the community, through education or otherwise, are so strong or so important that removal would involve a disproportionate interference with article 8 rights. In the present case, however, no such reasons were referred to. I am therefore of the opinion that the Secretary of State was entitled to conclude that there would be no realistic prospect of success in an appeal to the First-tier Tribunal on this ground. Thus the proportionality argument based on article 8 must fail.

[14] The second argument for the petitioner is based on the delay that has occurred in removing the petitioner from the United Kingdom. In her decision letter the Secretary of State had relied on the petitioner's precarious immigration status (paragraph 30), indicating that the education of the petitioner's children in the United Kingdom had been done in the knowledge of that status. The petitioner contends that, although she was notified that she had no right to remain in the United Kingdom on 21 March 2007, she had never been told of any actual intention to remove her and her family. In these circumstances she submits that in failing to have regard to that matter the Secretary of State acted in a manner that was unreasonable et separatim irrational. Nothing had been done for 3 1/2 years, despite the petitioner's supplementary representations.

[15] Counsel for the Secretary of State indicated that it was not accepted that there had been any undue delay in the present case, nor that there had been any lack of due expedition. The reason for the non-return of the petitioner had been the difficulty that was experienced in returning failed asylum seekers to Iran. The petitioner does not have an Iranian passport, and consequently appropriate documentation would be required from the Iranian embassy. To obtain this it was necessary that either the petitioner should go in person to the embassy or that someone should appear on the petitioner's behalf, with appropriate identity documents such as an identity card, a driving licence or an expired passport. It was also necessary that the petitioner should sign a form in relation to her voluntary return, if she should decide to avail herself of that possibility.

[16] The question of delay was considered in EB (Kosovo) v Secretary of State for the Home Department, supra, where it is indicated at paragraph 13 that there is no specified period within which an immigration decision must be made. Nevertheless, delay in the decision-making process may be relevant to an Immigration Judge's decision in any one of three ways. First, during the period of delay the applicant for asylum may develop closer personal and social ties and establish deeper roots in the community, and the longer the period of delay the likelier that is to be true. Secondly, if the applicant enters into a relationship with another person, it is likely initially to be regarded as tentative, because of the likelihood of removal, but as time passes it may well acquire a greater sense of permanence. Thirdly, delay may be relevant in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, if it indicates a system with unpredictable, inconsistent and unfair outcomes; this is the point discussed at paragraph [11] above. The second of these situations is clearly not relevant to the present case; the only relationship that is relied on is the petitioner's relationship with her children. That leaves the first possibility: that delay may lead to an applicant's developing stronger roots within the United Kingdom. That possibility is, if I may say so, very obvious, and is clearly highly dependent on the facts of the particular case. In the present case the Secretary of State's decision took into account the links that the petitioner's family had built up in Scotland. The links that were primarily relied on were those relating to the children's education, and it was stated in the decision letter (paragraph 30) that this was not sufficiently compelling enough to allow the petitioner to remain; the children could continue their education within Iran, the country where they had spent most of their lives. In my opinion it cannot realistically be argued either that it was irrational of the Secretary of State to reach that conclusion, or that no reasonable person in the position of the Secretary of could reach such a conclusion: see paragraph [13] above.

[17] The decision letter does not make reference to the specific problems that had arisen in relation to returning asylum seekers to Iran. These are, however, of significant indicating that the delay in return is by no means entirely the fault of the United Kingdom authorities. That appear to me to strengthen the argument that the delay in this case is of very little moment. Finally, on the subject of delay, I should record that I was referred by counsel for the Secretary of State to two Scottish decisions. In the first of these, AO, [2009] CSOH 168, it was held that the notion of delay involved an element of fault or responsibility on the part of the Secretary of State (paragraph [18]). To the extent that fault or responsibility of the United Kingdom authorities for delay may be relevant, it is absent in the present case. I was also referred to JO, [2010] CSOH 72, where the period of delay in returning a failed asylum seeker ran from 2004 to 2009. It was nevertheless held (at paragraph [30]) that removal was not disproportionate. That is entirely in accordance with the decision I have reached.

[18] The third argument for the petitioner was based on the position of the petitioner's elder son. Because he was 16 at the date of hearing, section 55 of the Borders, Citizenship and Immigration Act 2009 applied. This provision, so far as relevant, provides as follows

"(1) The Secretary of State must make arrangements for ensuring that --

(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom...

(2) The functions referred to in subsection (1) are --

(a) any function of the Secretary of State in relation to immigration, asylum or nationality;

(b) any function conferred on or by virtue of the Immigration Acts on an immigration officer...".

Section 55 was referred to in the Secretary of State's decision letter (paragraph 32), where it is stated, correctly, that the best interests of the child is a primary concern, although not necessarily the only consideration, when making decisions affecting children.

[19] In relation to section 55, counsel for the petitioner referred to the decision in ZH (Tanzania) v Secretary of State for the Home Department, [2011] UKSC 4, where the position of children in immigration issues is discussed at some length (at paragraphs 21-33, 44 and 46). Section 55 is based on article 3 of the United Nations Convention on the Rights of the Child, which provides that "In all actions concerning children... the best interests of the child shall be a primary consideration". In ZH it is stated (by Lord Kerr at paragraph 46) that the interests of the child must be given "a primacy of importance". Whilst this was not a factor of limitless importance in the sense that will prevail over all other considerations, it ranks higher than any other. Counsel further referred to R (Mansoor) v Secretary of State for the Home Department, [2011] EWHC 832 (Admin), where it is indicated (paragraph 32), following ZH, that while the interests of the child are a primary consideration, and not the only or the paramount consideration, it is more than merely a consideration to which regard must be had. Counsel also referred to the decision of Lord Malcolm in JS, [2010] CSOH 75, which deals with the relevance of precarious immigration status in the context of article 8. Lord Malcolm held that the fact that an applicant's status was precarious was not necessarily sufficient to overcome the need to have regard to the right to family life under article 8. That would obviously include the position of children who form part of the family.

[20] Counsel then referred to the decisions of the European Court of Human Rights in Maslov v Austria, [2008] ECHR 546, and Üner v The Netherlands, (2006) 45 EHRR 421. In those decisions it is indicated (paragraph 58 in Üner) that in considering the application of article 8 rights to the removal of persons from a country, two factors that are relevant are the best interests and well-being of the children, in particular the seriousness of the difficulties which they are likely to encounter in the country to which the applicant is to be removed, and the solidity of social, cultural and family ties with the host country and with the country of destination. Finally, reference was made to the Scottish decision in KBO v Secretary of State for the Home Department, [2009] CSIH 30, at paragraphs [13]-[15], where it is indicated that, at the "balancing" stage of considering the proportionality of removal as against family rights under article 8, the gravity of the interference with the article 8 rights requires to be taken into account.

[21] Counsel for the Secretary of State referred to two decisions in relation to the petitioner's article 8 rights and the position of her son. First, in Lee v Secretary of State for the Home Department, [2011] EWCA Civ 348, the opinions delivered in ZH were examined, with particular reference to a discrepancy that was said to have arisen between the views of Lady Hale and those of Lord Kerr. At paragraph 25 of EH Lady Hale indicated that the test was that the best interests of a child should be treated as "a primary consideration", and that that was not the same as "the primary consideration", still less as "the paramount consideration". The consequence of that was stated as follows (at paragraph 26):

"This did not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first".

Lord Kerr, by contrast, had stated (at paragraph 46) that the best interests of a child must rank higher than any other consideration; it was not merely one consideration that weighed in the balance alongside other competing factors, and the primacy of this consideration needed to be made clear in emphatic terms. In Lee Sedley LJ, after referring to an argument that those two opinions differed, stated that the Court of Appeal did not agree that there was a difference; Lord Kerr appeared to be expressing the same view as Lady Hale in different language. If that was mistaken, however, the majority opinion expressed by Lady Hale must be followed. For my own part I am not convinced that the two opinions in ZH are saying the same thing in different terms; the emphasis seems to me to be significantly different. Nevertheless, I agree that the views of Lady Hale must be followed. I should add that in Lee the court ordered the appellant to be deported, following conviction for serious drugs offences, even though the consequence was that his family was broken up for ever. Counsel for the Secretary of State also referred to the decision of Lord Hodge in R v Secretary of State for the Home Department, 2011 SLT 970, where the test applied (at paragraph [25]), was that the decision maker must treat the interests of children as "a primary consideration" in order that the United Kingdom might comply with its international obligations under the United Nations Convention on the Rights of the Child. The views of Lady Hale in ZH were followed. In my respectful opinion, that is clearly the correct approach.

[22] The position of the petitioner's son was considered in paragraphs 30-33 of the decision letter. It is plain from this passage that the primary contention for the petitioner was that she could not return to Iran because the children were at school and college in Scotland. The letter noted that while the children were undergoing education in Scotland that had occurred in the knowledge of the petitioner's precarious immigration status. In addition to that, the letter stated that attendance at school in United Kingdom was not sufficiently compelling as a counterweight to removal, because the children could continue their education on return to their country of origin. It was further noted that any Immigration Judge would be aware that the petitioner and her children had spent most of their lives in Iran. The letter goes on (at paragraph 32) to state the position under section 55 of the Borders, Citizenship and Immigration Act 2009. It continues at (paragraph 33):

"Account has been given to what is in the best interests of your client's child. It should be noted that the best interests of the child is only a primary consideration and not the only one. The best interests of a child can be overridden by other factors, including the need to maintain effective immigration control. Whilst it no doubt could be said that it is in the best interests of the children to remain in the UK to continue with their education and enjoy the lifestyle that they might have become accustomed to here it is not considered that these are factors which are of such weight as to render removal disproportionate".

In my opinion that passage represents an entirely proper attempt to balance the two competing considerations: the need to maintain fair and effective immigration control and the desire of the petitioner to continue with her children's education in Scotland. As ZH, properly interpreted, makes clear, the rights of a child are not an overriding factor, but are merely a factor that must be treated as a primary consideration. That is precisely what is done in the Secretary of State's decision letter: paragraph 33, in the passage quoted above, contains a clear statement of the balancing exercise that has been carried out, and in my view there can be no doubt that it is precisely the balancing exercise that is required by law.

[23] Paragraph 33 of the decision letter goes on to note that a parent is an obligation to act in the best interests of his or her children, and that the petitioner had been offered assisted voluntary return. The writer points out that a voluntary departure is the best option for a family facing removal, as it includes a reintegration package. The paragraph concludes by stating that this is a relevant factor in any assessment of proportionality. While counsel for the petitioner appeared to direct some criticism to this passage, it is not obvious to me how it can be criticized. The fact that a reintegration package was available to help the petitioner and her children go back to Iran is clearly a factor that tends to mitigate the adverse effects of removal, and in my view it cannot be argued that it is not a relevant consideration.

[24] The various issues identified in Razgar, supra, at paragraphs 17-20 were considered at paragraphs 36-51 of the decision letter. Certain passages in those paragraphs were criticized by counsel for the petitioner. At paragraph 37, dealing with a question of whether removal would interfere with the petitioner's family or private life, it is stated that on return to Iran the family could continue to enjoy their family life; they had no other family in the United Kingdom. That paragraph goes on to state that the petitioner had not submitted evidence to show that any friendships established in the United Kingdom could not be enjoyed from Iran through letters, telephone or the internet, nor was it suggested that friends could not visit the petitioner in Iran. The paragraph concludes:

"Subsequently it has not been established that a removal would amount to a disproportionate interference with your client's private life".

The quoted passage was criticized as indicating a reversal of the burden of proof in relation to proportionality. In my opinion that is far too legalistic a construction. The letter, taken as a whole, discloses that a proper balancing exercise was carried out, with no inversion of the burden of proof. Indeed, in a balancing exercise such as that involved with the article 8 rights of persons subject to removal and their children, it will usually only be in borderline cases that the burden of proof is relevant. The present does not appear to me to be in any way a borderline case. Nevertheless, there does not appear to be any serious suggestion in the letter that the writer treated the petitioner as being subject to a burden of establishing that removal would be disproportionate.

[25] The Secretary of State's conclusion on the issue of proportionality is stated at paragraph 45 of the decision letter, where it is recorded that it had been decided that returning the petitioner to her home country would indeed be proportionate. The paragraph continued:

"It is not accepted that your client's case is so exceptional that an Immigration Judge, taking all these fact into account, would find that your client would be exposed to a real risk of persecution or treatment contravening Article 8 of the ECHR if returned to her home country".

It was suggested for the petitioner that the expression "so exceptional" was a reversion to the former rule that article 8 rights would only prevail over immigration policy in "exceptional" cases; that view was departed from in Huang v Secretary of State for the Home Department, supra. In my opinion that criticism is plainly unfounded. The letter as a whole discloses a proper consideration of the approach followed post-Huang, and that is not vitiated by the terms of paragraph 45. Moreover, the expression "so exceptional" is clearly not designed to lay down any legal test. It is rather intended to state a fact, the rather obvious fact that return to Iran in the present circumstances presents typical features of any return of a person to his or her country of origin. The use of the word "so" indicates that a comparison is involved, and that of course is precisely what is required by a proportionality exercise.

[26] Apart from the matters set out in the decision letter, at paragraphs 30-33, other factors support the view that the balancing exercise involved in an assessment of proportionality favours returned to Iran. There is no suggestion that the family will be separated; they will all return to Iran together. As the decision letter points out, the children can continue their education in Iran. They can plainly reintegrate into life in Iran; no suggestion was made to the contrary. Moreover, the petitioner and both of her children have spent most of their lives in Iran. There was no suggestion that they were estranged from Iranian culture, and they are all Farsi speakers. For these reasons the degree of disruption involved in return to Iran will be minimal. That is completely different from cases where a foreign national has married a British spouse, who will require to move abroad into an unfamiliar and possibly alien culture. The present case is also plainly very different from cases where a family will be broken up. In all the circumstances I am of opinion that the Secretary of State acted both rationally and reasonably in concluding that petitioner would have no realistic prospect of success in any argument before an Immigration Judge that the balancing exercise involving the article 8 rights of the petitioner and her children, notably her son, should have been decided otherwise.

[27] The Secretary of State's final conclusion is stated at paragraph 47 of the decision letter. While this was the subject of some criticism by counsel for the petitioner, he ultimately accepted that if he failed in his arguments relating to the passages preceding that paragraph, paragraph 47 was acceptable. I have held that the legal approach in the earlier paragraphs is entirely acceptable, and consequently the criticism of this paragraph does not apply.

[28] For the foregoing reasons I will sustain the respondent's second plea-in-law and refuse the orders sought in article three of the petition.