Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 24
P795/11	OPINION OF J BECKETT QC (Sitting as a Temporary Judge) in Petition of AM (AP), NM & DM Petitioners: against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: for Judicial Review of a decision of the Secretary of State dated 14 July 2011   ­­­­­­­­­­­­­­­­­________________

Petitioner: Forrest, Drummond Miller LLP

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

10 February 2012

Introduction

[1] The first petitioner, AM, is a 36 year old national of Malawi. She is the mother of the second petitioner, NM, born 1 August 1999 in Malawi and the third petitioner, DM, born 26 August 2001 in Malawi. The second and third petitioners are nationals of Malawi. AM is also the mother of PM, who was born in the United Kingdom on 15 September 2009 and AM brings the petition on her own behalf and also on behalf of PM. The father of the three children is a national of Malawi who left the first petitioner after the birth of PM and he has not been in touch with the petitioners since then and his whereabouts are not known. The petitioners seek reduction of a decision of 14 July 2011 by the Secretary of State for the Home Department to refuse to treat representations as a fresh claim to remain in the United Kingdom.

[2] By a further minute of amendment received at the first hearing on 9 December 2011, and in his submissions, Mr Forrest, advocate for the petitioners, confined the scope of his attack on the decision to its treatment of the claim under article 8 of the European Convention on Human Rights and Fundamental Freedoms focused on the issue of the best interests of the second and third petitioners. The first petitioner no longer sought to found on the relationship described in paragraph 4.5 of the petition as an aspect of her article 8 claim.

The facts of the case

[3] The following history is taken from the decision letter of 14 July 2011, No. 6/10 of process. AM entered the United Kingdom on 21 February 2006 on a six month visit visa. In October 2006 she applied for and was refused a student visa. She remained unlawfully in this country before making a claim for asylum on 23 February 2010 which was refused on 9 March 2010. AM's appeal against that decision was refused by an Immigration Judge on 16 April 2010. She submitted an application to the First Tier Tribunal which was refused on 7 June 2010 and her application to the Upper Tier was refused on 5 November 2010. She became appeal rights exhausted on 8 November 2010. Further submissions of 26 January and 11 April 2011 were refused on 5 February 2011 and 26 April 2011 respectively. Further submissions on behalf of AM were presented in a letter from her solicitor on 13 July 2011, No. 6/2 of process.

[4] No. 6/13 of process comprises respective statements of DM and NM dated 30 June 2011 and which were signed by them on 7 July 2011. DM explains that he arrived in the United Kingdom in 2006 and lived in Nottingham and went to school there for four years before moving to Scotland. He has been attending Barmulloch Primary School since March 2010. He says that he does not remember anything about Malawi and that he does not speak Chichewa, the language which he understands is spoken in Malawi. He says that he wants to stay in the United Kingdom at his school with his friends. NM explains that she was also attending Barmulloch Primary but due to commence at All Saints Secondary School. She cannot remember Malawi and cannot speak the language. She does not want to return to Malawi and wishes to live in the United Kingdom. She refers to "my solicitors" in her statement.

[5] No. 6/8 of process is a letter from the Head Teacher at Barmulloch Primary School confirming that NM and DM were enrolled there in March 2010 and that they had settled into the life of the school, were making progress academically and their attendance was good.

[6] In the course of submissions, further information was provided by counsel and was agreed to be true. Both the first petitioner and her children had been invited to meet with officials of the United Kingdom Border Agency for a "Family Returns Meeting" on 13 June and a "Family Departure Meeting" on 5 July 2011. Whilst the first petitioner had attended, NM and DM had not, because they were at school.

The undisputed applicable law

[7] Rule 353 of the Immigration Rules provides:

"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."

[8] Counsel were in agreement that the law which fell to be applied in a judicial review where representations said to amount to a fresh claim had been refused was to be found in the cases of Dangol v Secretary of State for the Home Department 2011 SC 560 and O v Secretary of State for the Home Department 2010 SLT 1087 in which the respective divisions had adopted the following passage from the opinion of Buxton LJ in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495:

"[10] ... Whilst, therefore, the decision remains that of the Secretary of State, and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny. Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters.

[11] 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: ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusion 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 of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

The petition and submissions for the petitioners

[9] As I have explained above, the scope of the petition was reduced by amendment and a partial departure from its terms. Mr Forrest submitted that the Secretary of State had erred in her decision in relation to the article 8 claim relating to the best interests of the children in four ways. First, it was argued that the Secretary of State had decided the question for herself from her own perspective and had thus failed to apply the correct test which required her to consider the position of an Immigration Judge. Secondly, that she had failed to take into account evidence that she should have done. Initially Mr Forrest's third argument was that the Secretary of State had erred in taking certain material about education in Malawi into account, but he departed from that suggestion and reformulated his attack on the basis of misdirection. Fourthly, that the Secretary of State had failed to apply the requisite anxious scrutiny. Mr Forrest did not at any stage argue that the decision was one which could not reasonably have been reached.

[10] The first argument involved a textual analysis of the decision letter. Mr Forrest conceded that at paragraph 8 of the letter the correct test had been identified, but he argued that it was not applied on the crucial question relating to the best interests of the children. He acknowledged that the correct test had been applied at paragraph 12 but he seemed to argue that that was in the context of consideration of a relationship said to be enjoyed by the first petitioner. He accepted that the correct test had been applied at paragraph 62 when there was consideration of whether, looked at generally, there would be an infringement of article 8 rights. However, he submitted that at the point where the best interests of the children were under consideration, there had been no reference to what an Immigration Judge might have determined. He referred specifically to paragraph 48 of the decision letter, which I quote at paragraph [30] infra. This demonstrated that the Secretary of State had made the decision entirely from her own perspective and had not considered the issue from the perspective of an Immigration Judge.

[11] In support of his second argument Mr Forrest referred me to the terms of the Borders, Citizenship and Immigration Act 2009 (the 2009 Act), section 55, which so far as relevant provides:

"(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, and...

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

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

He then drew my attention to certain passages within No. 6/12 of process, "Every Child Matters - Change for Children", statutory guidance to the United Kingdom Border Agency on making arrangements to safeguard and promote the welfare of children, issued under section 55 in November 2009. He referred to page 5 and part of paragraph 6 which after referring to section 55 states:

"This means they must take this guidance into account and, if they decide to depart from it, have clear reasons for doing so."

In the present case, the Secretary of State had departed from the guidance without there being reason for doing so. Mr Forrest specified particular parts of the guidance which he said had not been complied with: He made passing reference to paragraphs 1.9 (g) and (h) at pages 9 and 10 which identify the value and importance of effective inter-agency working and information sharing; and to paragraph 1.17 (b) at page 12 which encourages listening to children and taking account of their wishes and feelings.

[12] Mr Forrest founded in particular on what is said at paragraph 2.7, in the fourth bullet point:

"Children should be consulted and the wishes and feelings of children taken into account wherever practicable when decisions affecting them are made, even though it will not always be possible to reach decisions with which the child will agree. In instances where parents and carers are present they will have primary responsibility for the children's concerns."

[13] Mr Forrest went on to found on two cases; ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, a Supreme Court decision in which the leading opinion was given by Baroness Hale of Richmond, and a decision of a single judge in Tinizaray v Secretary of State for the Home Department [2011] EWHC 1850 (Admin).

[14] Mr Forrest took me through paragraphs 29 and 33-37 of ZH (Tanzania) and paragraphs 13, 16 and 24 of Tinizaray. In Tinizaray, Judge Thornton had upheld an application for judicial review based on article 8 of the Convention, taken against a decision which would involve removal of a 9 year old girl and her mother to Ecuador, her mother's country of origin. Paragraph 13 contained Judge Thornton's summary of the duties imposed on immigration decision-makers by section 55 of the 2009 Act as he apprehended matters; paragraph 16 was a summary of what he took from "Every Child Matters - Change for Children"; and he expanded on the further duties which he apprehended lay on immigration decision-makers in relation to the seeking of further information in paragraph 24. Mr Forrest submitted that in these cases I would find guidance as to how a decision-maker should consider the best interests of a child. Mr Forrest founded in particular on what was said in Tinizaray at paragraph 13 (5):

"(5) The views of a child who is capable of forming her own views in all matters affecting her must be heard and due weight must be given to them in accordance with her age and maturity. Procedures should be adopted that ensure that those views are fully and freely obtained."

[15] Against this background, Mr Forrest submitted that the Secretary of State had erred by failing to ask the right questions and to consider the right evidence. First of all, the children had not been consulted, and whilst statements had been submitted to the Secretary of State, the terms of the decision letter demonstrated that the decision-maker had not actually read them or, if she had, she had not assimilated their content. In this case there should have been a personal interview of the children NM and DM. Secondly, the Secretary of State had erred by not consulting with the children's school. By failing to interview the children and failing to consult with the school, the Secretary of State was failing to take into account evidence which she should have. Whilst it could be seen from the terms of the decision letter that she had taken account of the letter from the school (No. 6/8 of process), she had not given this information sufficient weight and had not adequately dealt with this information in her decision letter.

[16] Mr Forrest conceded that he was not able to say that there was any special feature of this case which demonstrated that personal interview of the children was required. His position was that, in the light of what Lady Hale said in ZH (Tanzania), the terms of section 55 and the guidance issued in relation to it, personal interview of the children by officials acting for the Secretary of State was mandatory. He did not advise me of any information from the children or their school which ought to have been considered but was not considered on account of the Secretary of State proceeding on the basis which she had.

[17] Mr Forrest's third argument was that, having considered the information about the availability and quality of education to which she referred in paragraph 41 of the decision letter, the Secretary of State had misdirected herself in stating in the first sentence of paragraph 42:

"It is therefore considered that it would be possible for your client's children to receive their education in Malawi."

The question was not whether it was possible that they could receive education in Malawi, but whether it was in their best interests to do so, given that the information considered showed that the standard of education in Malawi was markedly lower than in the United Kingdom.

[18] Mr Forrest's fourth and final argument was that the Secretary of State had failed to exercise anxious scrutiny. He founded on paragraph 9 of Dangol, where the court had referred, with apparent acceptance, to a discussion by Carnwath LJ in R (Y H (IRAQ)) v Secretary of State for the Home Department [2010] 4 All ER 448 about the expression "anxious scrutiny", and observed:

"Translating that into practice in the present case means that the decision letter should demonstrate that no material factor that could conceivably be regarded as favourable to the reclaimer has been left out of account in the review of the evidence."

In the present case material factors had been left out of account, because the children had not been consulted and the school had not been consulted.

Submissions for the respondent

[19] Mr Webster for the respondent began with some general observations. He pointed out that the petitioner and her children would be removed together so there was no question of splitting a family unit as there had been in ZH (Tanzania). He pointed out that the best interests of the child was not of itself a distinct right under the Convention. The right under article 8 was to respect for family and private life and children would be a component of that. Whilst he accepted that the interests of children were a primary consideration, it might still be proportionate to remove children from the United Kingdom, notwithstanding that it may be in their best interests to remain here. This was clear from paragraph 33 of Lady Hale's opinion in ZH (Tanzania)

The first argument for the petitioners

[20] On the first argument, Mr Webster contended that Mr Forrest had erred in perceiving there to be two separate considerations of article 8 in the decision letter. There was one consideration in two parts. It was not appropriate to concentrate only on paragraphs 29-48 as Mr Forrest had done, rather, paragraphs 29-67 should be considered as a whole. It was fair to say that the Secretary of State had identified and referred to the correct test at the beginning, in the middle and at the end of her consideration of article 8 and, looking at the letter in the round, it was simply incorrect to suggest that she had failed to apply the correct test.

The second argument

[21] Mr Webster submitted that even if there was an error in failing to speak directly to the children or failing to contact their school, which was not accepted in either respect, it had not been demonstrated that it was of any materiality. Mr Forrest had put forward no indication of what would have been learned that would have had any impact on the decision had the proposed enquiries been made. It was important to note that it was not being suggested that the Secretary of State had reached a decision that was perverse. In any event, there was no warrant either generally or in this case for the proposition that the Secretary of State must ask children what their view is and make enquiries of their school.

[22] Mr Webster took me through the passages in No 6/12 of process to which Mr Forrest had referred and submitted that there was no support to be found for the mandatory consultation which Mr Forrest had contended for. He submitted that it was recognised that parents could be expected to speak up for their children in the ordinary run of cases, even if in some cases it may be necessary to be attuned to the possibility of a conflict of interest and in such a situation there may, in some cases, be an obligation to instigate further investigations. Mr Webster referred to paragraph 35 of Lady Hale's opinion in ZH (Tanzania) in this regard and, whilst acknowledging that she was referring to the question of representation, he observed that she had nevertheless suggested that in most cases information about the child's welfare and views could be obtained in other ways. She had not said that personal interview of children of sufficient maturity by officials of the United Kingdom Border Agency was necessary in every case. That was clear from paragraphs 36 and 37, the terms of which made it plain that all that was necessary was that "immigration authorities must be prepared at least to consider hearing directly from a child who wishes to express a view and is old enough to do so".

[23] Mr Webster observed that there was no suggestion of any conflict in the present case where the statements of the children, which were before the Secretary of State, confirmed that, like their mother, they wished to stay in the United Kingdom.

[24] It should be noted that the first petitioner had produced two statements to the Secretary of State, there being an onus on her to identify the material she sought to found on in her application for reconsideration. Further, there had been an opportunity for NM and DM to attend the two meetings in June and July at which they, or the first petitioner, could have offered any further information which was thought to be relevant which could have prompted further investigation had that been necessary. The first petitioner had not done so and NM and DM had not attended. It should be recalled that all that was required by article 12 of the United Nations Convention on the Rights of the Child ("UNCRC"), which Lady Hale had quoted in paragraph 34 of her opinion in ZH (Tanzania), was a right for children to express their views. In this case that right had been respected, the children who were capable of doing so had expressed their views.

[25] In so far as Mr Forrest had suggested that the respondent had failed to read or at least consider the terms of the statements of the children, that contention was simply unfounded as could be seen in the terms of paragraph 42 of the decision letter which made reference to the contents of those statements:

"... It is noted that the statements from your client's elder children make note of their inability to speak Chichewa, it is noted that Chichewa is an official language of Malawi along with English which the children do speak."

[26] It was plain from the decision letter that the letter from NM and DM's head teacher had been considered and no basis had been specified for saying that due regard had not been given to it. Mr Webster pointed out that whilst the children had been educated in Scotland for more than a year, it was little more than that because they had been at school in England beforehand. This consideration, he submitted, would bear on the assessment of the weight to be attached to any ties that the children may have formed at Barmulloch Primary School.

[27] Mr Webster criticised the approach of Judge Thornton in Tinizaray as going too far. He explained that that the Secretary of State had appealed that decision on the basis that the judge had misunderstood what Lady Hale had said in ZH (Tanzania), which was Mr Webster's submission in the present case. Lady Hale had not required that there should be a full investigation instigated by the Secretary of State in all immigration cases involving children.

The third argument

[28] Mr Webster submitted that the evidence about educational standards in Malawi set out in paragraph 41 of the decision letter was demonstrably material and it was appropriate for the Secretary of State to take it into account. It would not have been appropriate for her to ignore it simply because it suggested that education was poorer in Malawi than in the United Kingdom. The suggestion that the first sentence of paragraph 42 was indicative of misdirection was simply misconceived. All that that sentence represented was a component part in answering the broader question of what was in the best interests of the children and whether removal was proportionate in the light of that.

The fourth argument

[29] Turning to the fourth argument, Mr Webster submitted that what the court had said in paragraph 9 of its opinion in Dangol, should be considered alongside paragraphs 11 and 12. The court had examined the decision letter in paragraph 11 before stating:

"[12] We are not persuaded that demonstrating that proper account has been taken of all material information presented about the nature of the reclaimer's personal life in Scotland requires the decision-maker to enumerate every feature considered and elaborate upon the consideration given to it. What matters is whether the decision letter makes clear that all potentially favourable material factors have been taken into account in the context of reviewing all the material, old and new, bearing upon the reclaimer's personal life...."

[30] By examining the section of the decision letter in which the best interests of the children were considered, and particularly paragraphs 42-48, it could be seen that the Secretary of State took account of the relevant circumstances, weighted them and explained how she came to her decision. In paragraph 42 it was noted that it was possible for the children to receive education in Malawi, that they would be advantaged by the education they had had in the United Kingdom, that any relative disadvantage in education was not enough in itself to establish that it was in the best interests of the children to remain here, and it was noted that English is an official language in Malawi. In paragraph 43 it was noted that assistance would be available should the first petitioner return voluntarily and that both primary and secondary education was available in Malawi. In paragraph 43 the best interests of the children were weighed against the need to maintain effective immigration control and it was concluded that removal would not be disproportionate. In paragraph 44 it was noted that there were avenues through which the first petitioner could act in the best interests of her children. The ties which NM and DM will have established were noted in paragraph 46. Paragraph 48 is in these terms:

"Bearing in mind the family unit has their cultural and ethnic origins in Malawi and that their extended family is there, even taking into account what might be said concerning where the best interest of the children might lie, it is not considered that their removal would amount to a disproportionate interference with their right to respect for their private lives. Notably, at the time the two elder children were brought to the UK they and their parents could have had no expectation that they would be allowed to remain permanently, they arrived on 6 month Visit Visas.'

[31] It could be seen that proportionality had been evaluated after regard was had to schooling, ties, language, nationality, place of birth, and that the family would return to the country where their extended family lived and where their cultural origins lay. In these circumstances, an absence of anxious scrutiny had not been demonstrated.

Discussion

The first argument

[32] In paragraph 8 of the decision letter, under the heading "Consideration of Further Submissions", it is noted:

"In consideration of your submissions, the key question is whether the fresh material when taken together with all the previously considered material, creates a realistic prospect of success, notwithstanding its rejection. The question is not whether the Secretary of State thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of success that an Immigration Judge, applying the rule of anxious scrutiny, would conclude that your client is at real risk of persecution or serious harm on return, or would breach his rights under the European Convention on Human Rights."

Paragraph 12 narrates:

"It is accepted that none of the representations have been previously considered. To that extent they surmount the first hurdle of paragraph 353. However, for the reasons given below it is not accepted that when taken together with the previously considered material that there is a realistic prospect of success before an Immigration Judge. To that extent they are not considered to be significantly different." (The emphasis is mine.)

The letter then goes on to deal with particular features under the headings "Negative Credibility", "Sexual Orientation", "Custody of Children", "Article 8-Best Interests of the Child" and "Article 8 - Family and Private Life". The treatment of representations about the first petitioner's sexual orientation and issues relating to the custody of the children in Malawi was not founded on by Mr Forrest.

[33] It can be seen that the correct test was identified at paragraph 8 of the letter and that test was then applied generally in paragraph 12, with reference to "the reasons given below". Accordingly, if Mr Forrest was contending that paragraph 12 was only addressing issues arising from the first petitioner's sexual orientation, I do not accept that.

[34] In paragraph 30 it is noted that "the best interests of the child is a primary concern" under reference to UNCRC and Section 55 of the 2009 Act. Extensive reference is made to the opinions of Lady Hale, Lord Hope of Craighead and Lord Kerr of Tonaghmore in ZH (Tanzania). Paragraph 38 confirms that regard was given to the statutory guidance "Every Child Matters - Change for Children."

[35] Paragraph 40 narrates:

"Your client has submitted correspondence in relation to her children attending school in the UK. It is accepted that your client's children attend school in the UK. However your client's children attending school in the UK is not sufficiently compelling enough (sic) to allow your client to remain in the UK when they could continue their education on return to their country of origin, all information another Immigration Judge would take into consideration."

(The emphasis is mine.)

[36] Paragraphs 49-67 of the decision letter begin with the heading "Article 8 - Family and Private Life" and in paragraph 49 it is narrated that "the best interests of the children have been considered above."

[37] It is true that explicit reference is not made to consideration from the perspective of an Immigration Judge in paragraph 48. It would have been better, and would have avoided any room for argument if such reference had been made in that paragraph, but I am not persuaded that this demonstrates that the Secretary of State erred in the manner alleged.

[38] Paragraph 62 of the decision letter is in these terms.

"After considering the cases of Razgar, Huang, Chikwamba and Beoku-Betts it has been decided that returning your client to her home country would indeed be proportionate. It is not accepted that your client's case is so exceptional that another Immigration Judge, taking all these facts into account would find that she would be exposed to a real risk of persecution or treatment contravening Article 8 of the ECHR if returned to her home country." (The emphasis is mine.)

[39] Paragraph 62 follows a discussion of the cases of Razgar, Huang, Chikwamba and Beoku-Betts and reaches a conclusion about article 8 proportionality in the light of them in the first sentence. The second sentence is general in its scope and leads onto paragraphs 63, 64 and 65 which are plainly dealing with the application as a whole.

[40] Even if I am wrong in my impression of paragraph 62, having regard to the structure of the letter, and particularly what is narrated in paragraph 12, and to the explicit reference to the perspective of the Immigration Judge in paragraph 40, I do not accept that the Secretary of State applied the wrong test and judged matters exclusively from her own perspective when considering the best interests of the children. The best interests of the children fell to be treated as part of the balancing exercise under article 8 and that question was explicitly considered from the perspective of the hypothetical Immigration Judge.

The second argument

[41] Whilst what Lady Hale had to say in paragraphs 34-37 of her opinion in ZH (Tanzania) was obiter, she was nevertheless providing valuable guidance.

[42] Under the heading "Consulting the children" she quoted initially from article 12 of the UNCRC. In the present case, the views of NM and DM were considered and given due weight. The views of those two children were made known to the Secretary of State in the form of statements submitted by their mother's lawyer. There were opportunities for them to attend meetings with officials of the United Kingdom Border Agency which they did not take up. Accordingly, I do not consider that anything which has happened in this case is in contravention of article 12.

[43] Lady Hale discussed situations where separate representation may be appropriate for children, but she indicated that in most cases it will be possible to obtain information about the child's welfare and views in other ways and she quoted herself from EM (Lebanon) v Secretary of State for the Home Department (AF( A Child) intervening) [2009] AC 1198 at paragraph 9, as saying that:

"But in most immigration situations, unlike many ordinary abduction cases, the interests of different family members are unlikely to be in conflict with one another. Separate legal (or other) representation will rarely be called for."

In paragraph 36 of ZH (Tanzania) she indicated that those conducting cases should be alive to the possibility of conflicts of views and interests and must be prepared to ask the right questions. In paragraph 37 she described the obligation in this way:

"But the immigration authorities must be prepared at least to consider hearing directly from a child who wishes to express a view and is old enough to do so. While their interests may be the same as their parents' this should not be taken for granted in every case." (The emphasis is mine.)

[44] It seems plain that what Lady Hale envisaged is that the way in which the interests of children, and their views, would be ascertained would vary according to the particular circumstances of the case and that careful consideration would have to be given as to how that would be done in each case. It seems clear that she did not require that in all immigration cases involving children they would have to be interviewed or that reports from other agencies would necessarily have to be obtained. Equally there will be cases where those steps may well be necessary, one obvious example being a case where the child has different interests from another family member who is involved in the immigration proceedings. Lady Hale cautioned that care must be taken to ensure that such cases are identified.

[45] In Tinizaray in paragraph 13, Judge Thornton explained what he saw as the duties on an immigration decision-maker in the context of the particular circumstances of that case. Those circumstances included consideration of the effect on a 9 year old child who had lived in the United Kingdom all her life and who had had no contact with the Ecuadorian way of life. It can be seen that there are material points of distinction with the second and third petitioners who were born in Malawi and who have lived part of their life there. In that case, the judge criticised the way in which the interests of the child were ascertained (through her mother), but in the present case the Secretary of State ascertained from statements prepared by solicitors and signed by the children themselves, that NM and DM wished to remain in the United Kingdom. It is not clear from the judgment in Tinizaray whether the Secretary of State had accepted that it was in the best interests of the child to remain in the United Kingdom and in paragraph 27(1) it was recorded that "..it was not possible for the decision-maker to form a balanced view as to what course of action was in Angeles's best interests.." In the petitioners' case, the Secretary of State proceeded on an assumption that it was, or perhaps implicitly that an Immigration Judge might determine, in the best interests of the second and third petitioners at least to remain in the United Kingdom as can be seen in paragraphs 44 and 48 of the decision letter.

[46] In paragraph 27(1) of his opinion in Tinizaray, Judge Thornton suggested that in that case the Secretary of State could have taken certain initiatives to supplement the inadequate material available to the decision-maker. There is no mention in that discussion of any obligation on the applicant, who in many cases will be best placed to supply it, to place relevant information about her family before the Secretary of State. That may be a relevant consideration in situations where it is necessary to assess what, if any, level of investigation was incumbent on the Secretary of State. Paragraph 25 of his opinion in Tinizaray, indicates that Judge Thornton envisaged a requirement for detailed investigation into a number of issues, in the circumstances of that case. It might appear to go beyond what Lady Hale was suggesting in ZH (Tanzania) but I do not require to determine the soundness of the approach taken in Tinizaray, or establish what will generally be required of the Secretary of State in article 8 cases involving children. The issue for me is whether there was any error in the circumstances of the petitioners' case.

[47] The information available to the Secretary of State in the present case was such that I am not persuaded that applying the terms of paragraph 13(5) in Tinizaray would demonstrate that there was any failure by her in the present case.

[48] The decision letter narrates that the guidance in "Every Child Matters - Change for Children" was applied and I see no basis for concluding that it was departed from. The views of the two children who were capable of expressing their views were known to the Secretary of State and it is quite clear that she understood what they were saying in their statements and took it into account. The terms of paragraph 42 of the decision letter demonstrate this very clearly and there is no merit in the suggestion that the statements of the children were not read or assimilated.

[49] I am not persuaded that Lady Hale's guidance would impose a requirement for the Secretary of State's officials to interview NM and DM, and to consult with their school, in the particular circumstances of the present case where the views and interests of the children coincided with their mother AM and where there was information from the children's head teacher. Even if there was a technical failing in this respect, it has not been demonstrated that it would be of any materiality. Mr Forrest candidly accepted that he was not able to demonstrate that there was any reason special to this case why personal interviews were required. He did not furnish the court with any information which would have come to light had the children been interviewed by the Secretary of State's officials or if further enquiry had been made of the children's school.

The third argument

[50] I am not persuaded that the first sentence of paragraph 42 of the decision letter demonstrates that the Secretary of State misdirected herself or erroneously took account of material in that and the preceding paragraph. I prefer Mr Webster's submissions on this point. The material considered in paragraph 41 was relevant and appropriately formed part of the overall consideration of the claim. The identification of the possibility referred to in paragraph 42 was simply one step along the way to reaching the overall conclusion.

The fourth argument

[51] Mr Forrest's argument under this heading added little to his submissions in support of his second argument which I have discussed at paragraphs [41] to [49] above. I prefer Mr Webster's submissions on this issue, which I have summarised in some detail at paragraphs [29] to [31] above. Having considered the whole of the decision letter in the light of the material advanced on behalf of the petitioner, I do not detect an absence of anxious scrutiny.

Decision

[52] For these reasons I am not persuaded that there is any basis for the court to intervene. Having considered the criticisms advanced both individually and cumulatively, I conclude that the Secretary of State's decision of 14 July 2011 satisfies the requirement of anxious scrutiny and that her decision not to treat the representations as a fresh claim was not unreasonable or otherwise unlawful. I shall therefore repel the plea in law for the petitioner and sustain the third plea in law for the respondent and refuse the petition. I shall reserve in the meantime all questions of expenses.