Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 13

 

P258/14

OPINION OF LORD KINCLAVEN

In the petition of

M K

Petitioner;

for

Judicial Review of a decision by the Secretary of State for the Home Department

Respondent:

Petitioner:  G A Dewar;  Drummond Miller LLP

Respondent:  Webster;  Office of the Advocate General

10 February 2015

Introduction and Overview
[1]        This is a petition seeking judicial review of a decision by the Secretary of State for the Home Department dated 10 February 2014 (no. 6/1 of process) refusing to accept that further submissions submitted to her on behalf of the petitioner amounted to a fresh claim for asylum and a claim for breach of the petitioner’s human rights.

[2]        The case came before me for a substantive first hearing.

[3]        Mr Dewar appeared for the petitioner.  He invited me to find that the respondent had erred in law, to sustain the petitioner’s plea in law, and to reduce the decision complained of.

[4]        Mr Webster appeared for the respondent.  He contended that the respondent had not erred in law in reaching her decision.  He invited me to refuse the orders sought. 

[5]        Having considered the submissions of both parties, and the various documents produced, I have reached the conclusion (for the reasons outlined more fully below) that the respondent’s submissions prevail.

[6]        Accordingly, I shall sustain the respondent’s third plea-in-law, repel the petitioner’s plea in law and refuse the orders sought in the petition.

[7]        I shall reserve meantime the question of expenses.

[8]        I would outline the background and my reasons as follows.

 

The background

[9]        The petition and answers and the written notes of argument can all be taken as read.

[10]      In the course of the hearing I was referred to the following authorities:

• R (Razgar) v Secretary of State for the Home Department [2004]UKHL 27, particularly paragraphs 17 and 20;
• WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495;
• Huang v Secretary of State for the Home Department [2007] UKHL 11, particularly paragraph 20;
• UE (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 975, paragraphs 36 and 43;
• R (ON) v Secretary of State for the Home Department [2013] EWHC 720 (Admin);
• MS v Secretary of State for the Home Department [2013] CSIH 52, particularly paragraphs [23] to [29]; and
• DN Petitioner [2014] CSOH 142, particularly paragraphs [15] to [17].

 

The petitioner’s position

[11]      The petitioner submitted that the decision complained of was irrational and unlawful for the three reasons set out at articles 7.1, 7.2 and 7.3 of the petition. 

[12]      In essence those reasons were:

1.         that the respondent had not properly considered, applying anxious scrutiny, whether there were realistic prospects of success before another judge;

2.         that the respondent had not properly considered whether there was a good arguable case that removal would be disproportionate; and

3.         that in holding that removal would not amount to a disproportionate interference in the petitioner’s private life, the respondent had left out of account the value that the petitioner’s private life has had on others in the community.

[13]      The petitioner’s principal proposition was that his intended removal from the United Kingdom would amount to disproportionate interference with his article 8 of the European Convention on Human Rights (ECHR) (article 4.3 in the petition). 

[14]      In 2011, the petitioner’s claim for leave to remain was refused.  He appealed to the First-tier Tribunal (Immigration and Asylum Chamber) but was unsuccessful.  Subsequent efforts to gain permission to appeal to the Upper Tribunal failed.  No further avenue of appeal exists.

[15]      The petitioner’s solicitors submitted further letters (produced) to the respondent along with the documents which are now contained in nos. 7/1, 7/2, 7/3 and 7/4 of process.  In the decision complained of, the respondent refused to accept that the further submissions contained in the letters amount to a fresh claim for the purposes of paragraph 353 of the Immigration Rules.  Paragraph 353 is set out in article 5 of the petition. 

[16]      Mr Dewar submitted that the respondent had made various errors in law. 

[17]      He began by addressing, first of all, the questions of “realistic prospects of success” and “good arguable case” for leave to remain.

[18]      The respondent’s task under paragraph 353 was to consider the new material together with the old and make two judgments:  Firstly, whether the new material was significantly different from that already submitted.  If it was not “significantly different”, the Secretary of State had to go no further.  Secondly, if the material was significantly different, the Secretary of State had to consider whether it, taken together with the material previously considered, created a reasonable prospect of success in a further asylum claim (WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, per Lord Justice Buxton at paragraph 6).

[19]      When reviewing the respondent’s decision-making, the court required to consider whether the respondent had asked herself the correct question:  Were there realistic prospects of success before another judge?  That is a modest threshold test (WM supra at paragraph 11).  The respondent did not require to be persuaded that the petitioner’s claim would succeed.   If the court finds that she has asked herself the wrong question, then the application for review must succeed.

[20]      The court also required to consider whether the respondent has demonstrated the requisite anxious scrutiny both in terms of her approach to the facts and to the legal inferences she draws from them.  If the court finds that she has not satisfied the requirement for anxious scrutiny, then the application for review must succeed. 

[21]      The respondent acknowledged the appropriate test in her decision (see paragraphs 7 to 10 of the decision letter).   However, the petitioner argued that this was a passing or “cosmetic” acknowledgement.  Instead of asking the correct question, or anxiously scrutinising the facts and the legal conclusions pertinent to the petitioner’s case, the petitioner argued that the respondent simply set out previous findings made by decision-makers elsewhere (paragraphs 11 to 19).  There were seven separate references to allegations of criminality made by other judges.

[22]      The respondent recounted the salient reasons for the petitioner being refused permission to appeal by the First-tier and the Upper Tier (paragraphs 14 and 15).  She referred to the petitioner’s previous efforts to raise judicial review proceedings and to appeal to the ECtHR (paragraphs 16, 17 and 24).  She then stated that the petitioner was bound to fail under the Immigration Rules (paragraphs 26 and 27).  The petitioner submitted that the respondent simply presumed that the petitioner’s case was bound to fail.  She had, accordingly, asked herself the wrong questions.  She had applied too high a standard in the circumstances.  The application for review ought therefore to be granted – so submitted the petitioner.

[23]      The respondent purported to answer the correct question in the negative at paragraph 28 of her decision.  She did so “for the aforementioned reasons”.  Esto the respondent asked herself the correct question, the petitioner submitted that she had not substantively considered the further representations.  She did not say why she rejected the extensive documentary evidence before her.  Rather, she focused unduly on extraneous matters.  She has failed to exercise the requisite anxious scrutiny.  The application for review ought therefore to be granted.

[24]      In any event, so submitted Mr Dewar, the petitioner had demonstrated a good arguable case why his claim should be considered outwith the Immigration Rules (MS v Secretary of State for the Home Department (2013) CSIH 52).  He described circumstances “in which refusal would result in unjustifiably harsh consequences [for him] … such that removal would not be proportionate” (MS at paragraph 28).  Notwithstanding that fact, the respondent concluded that there was no good arguable case (paragraph 32).  The decision complained of did not disclose how this conclusion was reached.  Nor did it disclose how the individual submissions, and the evidence, were considered.  The respondent asserted that previous consideration was given to the petitioner’s case as a totality when it was initially refused in June 2011 (paragraph 32).  However, that assertion was wholly misconceived.  The respondent proceeded, wrongly, on an assumption that there was no good arguable case.  She has misdirected herself and the application for review ought therefore to be granted.

[25]      Mr Dewar then turned to deal with the question of “societal value”.

[26]      The general proposition was “the fact that a community will lose something of value if an immigrant is removed is capable in principle of being relevant to a proportionality assessment, but is unlikely in practice to carry much weight”(David Ndagijimana v Secretary of State for the Home Department [2014] CSOH 142 per Lord Docherty at paragraph 15).

[27]      In applying that general proposition it has been said that:  “While the factor of public value can be relevant…I would expect it to make a difference to the outcome of immigration cases in only a relatively few instances where the positive contribution to this country is very significant” (UE (Nigeria) & Others v Secretary of State for the Home Department [2010] EWCA Civ 975 per Sir David Keene at paragraph 36).  

[28]      The petitioner’s contention was that this is precisely the sort of case that Sir David had in contemplation i.e. an exceptional case where the positive contribution is very significant. 

[29]      Evidence of the positive contribution was before the respondent.  In particular, details of the petitioner’s proactive involvement in the Labour Party and the “Better Together” campaign (matters of political and constitutional importance);  that he was the authorised lay-representative of NA (pursuer in a successful “test case” pertaining to civil penalties in an immigration/employment context);  and regular fundraising for charitable causes.  These matters were not properly considered in the decision complained of at all, albeit there was a passing reference to Labour and charities (paragraph 6).  As a matter of law, these matters were relevant to the proportionality assessment.

[30]      In UE Richards LJ observed (at paragraph 43) that “they [such factors] should not be excluded from consideration altogether”.  That the factors have been excluded in the petitioner’s case rendered the decision complained of unlawful.

[31]      Mr Dewar also added the following supplementary comments.  In the decision complained of the respondent relied repeatedly upon allegations of the petitioner’s dishonesty.  In particular, she contended that he is a fraudster and he had made admissions under caution.  Mr Dewar submitted that the respondent ought not to have had regard to allegations when assessing the petitioner’s claim (as she does at paragraph 35).  The petitioner has not been convicted of anything.   Reference was made to the terms of paragraph 353 B of the Immigration Rules which requires inter alia a conviction before the nature of any (alleged) offence can be considered.  Absent a conviction, the petitioner is presumed innocent as a matter of law.  The respondent had accordingly misdirected herself by placing weight on an irrelevant factor.  She has also omitted to consider a relevant factor, namely, the petitioner’s societal value. 

[32]      The respondent’s decision was unreasonable and unlawful – so submitted Mr Dewar.

 

The respondent’s position

[33]      The respondent’s position was as follows.

[34]      The petitioner is a national of Pakistan.  He entered the United Kingdom in 2002 in terms of a student visa.  He remained in the United Kingdom unlawfully after his visa expired in 2004.  He is an over-stayer.  He avoided immigration control until 2009, when he sought leave to remain on the basis of, inter alia, article 8, ECHR.  Leave was refused and the refusal was upheld on appeal.  In refusing the appeal the petitioner was found to have claimed some £30,000 in benefits and student loans to which he was not entitled on the basis of a false claim to be a British citizen.  That finding in fact remains unchallenged by the petitioner.  The petitioner continued to remain in the United Kingdom unlawfully.  The petitioner submitted further representations in 2013.  Those further representations were refused and considered not to amount to a fresh claim.  In response to the pre-action protocol letter on or about 25 February 2014 the respondent issued a supplementary refusal letter dated 10 February 2014.  It is against that decision that the present proceedings are directed.

[35]      The main issues for the Court were:

• whether the respondent materially erred in law by failing to have regard to a purported material consideration, namely the further representations made?
• whether the respondent materially erred in law by purportedly failing to give adequate reasons for her decision on the absence of a good arguable case outwith the immigration rules?

[36]      It was explained and averred in the respondent’s Answers that “the respondent had regard to the material produced by the petitioner”.  She had regard to all relevant considerations in considering the petitioner’s representations.  The respondent had regard to the correct test.  She applied the correct test.  She reached a view she was entitled to reach.  It was a matter of judgment. 

[37]      In any event, the material produced by the petitioner does not demonstrate circumstances that would result in unjustifiably harsh consequences for the petitioner in the event of removal or that there is a realistic prospect of an immigration judge finding that there is a good arguable case to that effect.

[38]      Esto the respondent erred, that error was not material.

[39]      In short, the respondent’s position was that she had regard to the correct test and to the further representations made.  The petitioner’s immigration history was, by any account, poor.  The respondent had regard to the previous and further material and balanced the same against the petitioner’s prior immigration history.  She reached a view she was entitled to reach as to (i) proportionality of removal; and (ii) realistic prospects of success before an immigration judge. 

[40]      In any event, such was the petitioner’s poor immigration history and private life (obtained when well aware of his precarious position whilst in the United Kingdom) that there is no realistic prospect of an immigration judge concluding other than that his removal is not disproportionate. 

[41]      Any error on the part of the respondent was not material – so submitted Mr Webster.

 

Discussion

The authorities referred to

[42]      There was no real dispute as to the relevant authorities and principles to be applied.  They were outlined by the petitioner.  I do not propose quote from authorities at length.  The main passages have already been identified above. 

[43]      In the present petition the real issues depend on the application of those principles to the facts of this particular case.

[44]      It might be helpful, however, to mention two further passages, highlighted during the hearing.

[45]      Firstly, in MS v Secretary of State for the Home Department [2013] CSIH 52 Lord Drummond Young, delivering the opinion of the Court, said inter alia:

“[28]  …  If an official or tribunal or court is asked to consider leave outside the rules, an applicant must put forward a reason for doing so.  Such a reason will usually consist of circumstances "in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate" (in the words of paragraph 3.2.7d of the Home Secretary's guidance).  We are of opinion that in considering whether such circumstances have been demonstrated by an applicant, the criterion that should be used is that of a "good arguable case", as suggested by Sales J in the passage quoted above.  The decision maker should examine the circumstances put forward by the applicant and determine whether they disclose a good arguable case that the rules would produce an unfair or disproportionate result such that the applicant's article 8 rights would be infringed.  It is only if that test is satisfied that there is any need to go on to consider the application of article 8 in detail. Furthermore, as Sales J indicates, those writing decision letters should demonstrate that they have indeed addressed this test.”

 

[46]      Secondly, in DN Petitioner [2014] CSOH 142, Lord Doherty said inter alia:

“[15]  But in fact I am not persuaded that there was any error of law on the part of the UT Judge, never mind a material error.  It was open to him to find that the appeal was hopeless.  The FTT was entitled to have regard to the petitioner’s immigration history – that was not an irrelevant consideration.  The Immigration Judge erred in leaving out of account the evidence of the petitioner’s contribution to the community, but in the circumstances of this case that was not a material error of law.  The fact that a community will lose something of value if an immigrant is removed is capable in principle of being relevant to a proportionality assessment, but it is unlikely in practice to carry much weight.  In UE (Nigeria) v Secretary of State for the Home Department, supra, Sir David Keene observed at paragraph 36:

 

“36.  I would, however, before concluding emphasise that, while this factor of public value can be relevant in the way I have described, I would expect it to make a difference to the outcome of immigration cases in only a relatively few instances where the positive contribution to this country is very significant, perhaps of the kind referred to by Lord Bridge of Harwich in Ex p Bakhtaur Singh [1986] 1 WLR 910.  The main element in the public interest will normally consist of the need to maintain a firm policy of immigration control, and little will go to undermine that.  It will be unusual for loss of benefit to the community to tip the scales in an applicant’s favour, but of course all will depend on the detailed facts which exist in the individual case and in particular on the extent of the interference with his private and/or family life.”

 

The present petition

[47]      I have given anxious consideration to the whole circumstances of the present petition, including the decision complained of (no. 6/1 of process), the documents produced and the submissions of counsel.

[48]      The letters which the petitioner submitted to the respondent in support of his claims are to be found in the productions.  The respondent has produced the enclosures referred to - which are contained in three lever-arch files (nos. 7/1, 7/2, 7/3 and 7/4 of process). 

[49]      As noted above, the petitioner avers, inter alia, that after the date of the decision of the First-tier Tribunal he established and developed private life in the UK.  He attained a number of educational qualifications.  He enrolled as a student at the University of Strathclyde, Glasgow.  He has since 2011 used his advocacy skills to provide considerable assistance to those involved in litigation unable to afford legal representation (including acting as the authorised lay representative for NA).  He has also engaged in matters which he describes as being of political and constitutional importance.  He is a leading member of his local Labour party.  He has been involved in various activities associated with the leadership of that party, including the “Better Together” campaign.  He has also assisted in a mediation role in a controversy at a local Labour party.  He has also established contacts with and become involved in several charitable organisations (including regular fundraising).

[]          The documents contained in 7/1, 7/2, 7/3 and 7/4 of process support the view that the petitioner has a number of transferable skills.  He is a talented student, a regular fundraiser, and a politically active networker.  He is also adept at maintaining records of correspondence and photographs and is able to produce numerous supportive references.  However, as Mr Dewar recognised, “societal value” (albeit a factor that should not be excluded from consideration) is unlikely by itself to be determinative of a case such as this.

 

The Decision Letter

[50]      The decision letter (no. 6/1 of process) can be referred to for its whole terms. 

[51]      In overview, the decision letter (which runs to 12 pages) deals with:

• “Immigration history” (at paragraph 3);
• “Immigration Rules” (paragraph 4);
• “Basis of representations” (paragraphs 5 and 6);
• “Consideration of Further Submissions” (paragraphs 6 to 10);
• “Previous findings” (paragraphs 11 to 19);
• “Article 8 Family and Private Life” (paragraphs 20 to 30);
• “2 Stage Approach” and MS Petitioner (paragraphs 31 to 33);
• “Paragraph 353 of the Immigration Rules” (paragraphs 34 to 38); and
• “Voluntary Return” (paragraph 39 et seq.).

[52]      The following passages in the decision letter were highlighted, amongst others, during the hearing:

• Paragraph 6 of the decision letter states:

  “In support of your client’s case he has provided almost 600 documents which have been read and considered.  These include, for example, letters of support, evidence of his involvement with the Labour Party and charity involvement.”

   

• In paragraph 27 it is stated inter alia that:

  “Your client is 33 years old and a national of Pakistan who lived in Pakistan until the age of 22.  He has therefor spent the majority of his life and his formative years outwith the UK.  Having spent the first 22 years of his life in Pakistan it is considered that he will have no language difficulties on his return to Pakistan … It is further considered that … he will have absorbed the social and cultural aspects of that country.  No evidence has been put forward to show why your client would be unable to re-establish a private life upon return to Pakistan.  It is noted that your client has failed to show that he has no social, cultural or family ties in Pakistan.  In fact it is noted that your client’s parents and siblings live in Pakistan.”

   

• Paragraph 28 concludes:

  “ … For the aforementioned reasons it is not considered that there is a realistic prospect of an Immigration Judge, applying anxious scrutiny, coming to a different conclusion.”

   

• In paragraph 32 it is stated:

  “On the basis of the information you have provided, it has been concluded that removing your client from the UK or requiring him to leave would not be contrary to the UK’s obligations under the ECHR.”

   

• In paragraph 33 it is stated:

“As we have determined not to reverse the decision on the earlier claim and have determined that your submissions do not amount to a fresh claim, your client has no further right of appeal.”

 

Conclusions

[53]      I agree with the respondent’s conclusions – for the reasons outlined by Mr Webster. [54]    The respondent avers, inter alia, that she had regard to the material produced by the petitioner.  She had regard to the relevant consideration.  She applied correct test.  She reached a view she was entitled to reach.  It was a matter of judgment. 

[55]      Having considered the petitioner’s submissions and the productions in this case, I cannot detect any error of law on the part of the respondent. 

[56]      The material produced by the petitioner does not demonstrate circumstances that, applying the rule of anxious scrutiny, would result in unjustifiably harsh consequences for the petitioner in the event of removal - or that there is a realistic prospect of an immigration judge finding that there is a good arguable case to that effect.

[57]      The respondent had regard to relevant considerations and she reached a conclusion which she was entitled to reach as regards the proportionality of removal and realistic prospects of success before an immigration judge. 

[58]      I do not accept that the respondent erred in relation to societal value.  This is not an exceptional case where the positive contribution to this country is very significant.

[59]      The petitioner’s immigration history was poor.  His private life, and societal value, was obtained when well aware of his precarious position whilst in the United Kingdom.

[60]      In short, the decision under challenge (no. 6/1 of process) contains no material error.  I do not accept the petitioner’s criticisms.  The decision is neither irrational nor unlawful. 

[61]      I am not satisfied that the decision should be reduced.

 

Decision

[62]      In the result, and for the reasons outlined above, I find for the respondent.

[63]      Accordingly, I shall sustain the respondent’s third plea-in-law, repel the petitioner’s plea in law and refuse the orders sought in the petition.

[64]      I shall reserve meantime the question of expenses.