Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 108

 

P90/15

OPINION OF LORD CLARKE

In the petition

KENNETH MUCHENA (AP)

Petitioner;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

for Judicial Review of a decision dated 1 September 2014, certifying the petitioner’s further submissions under section 96(1) of the Nationality, Immigration and Asylum Act 2002

 

Petitioner:  Lindsay QC, Winter;  Drummond Miller LLP

Respondent:  Pirie;  Office of the Advocate General

11 August 2015

[1]        In this petition for judicial review, the petitioner seeks reduction of a certification under section 96(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), contained in a letter dated 1 September 2014, and a consequential decision by the respondent contained in the same letter to refuse to revoke a deportation order relating to the petitioner.

[2]        The relevant legislation is as follows: 

Section 82(1)A of the 2002 Act provides that:

“Where an immigration decision is made in respect of a person he may appeal to the Tribunal.”

 

Section 82(4) provides:

 

“(4)  The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.”

 

One of the aforementioned exceptions and limitations is set out in section 96 of the 2002 Act.  When a right of appeal does exist, section 82 sets out the grounds on which such an appeal may be brought including grounds relating to the Geneva Convention and the Human Rights Act 1998.  Section 85 sets out matters to be considered on an appeal made under section 82.  These include any matter raised in a statement made by a person under section 120 in response to what is commonly known as a “one‑stop notice”, which constitutes a ground of appeal of a kind listed in section 84(1) of the 2002 Act.

Section 85 includes the following:

“(1)  An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).

 

(2)  If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.

 

(3)  Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.”

 

Section 120 makes provision for service of a “one‑stop notice” upon a person who has applied to enter or remain in the UK or in respect of which an immigration decision has been taken.  It provides as follows:

“120  Requirement to state additional grounds for application

(1)  This section applies to a person if—

 

(a)  he has made an application to enter or remain in the United Kingdom, or

 

(b)  an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him

 

(2)  The Secretary of State or an immigration officer may, by notice in writing, require the person to state —

 

(a)  his reasons for wishing to enter or remain in the United Kingdom, and

 

(b)  any grounds on which he should be permitted to enter or remain in the United Kingdom, and

 

(c)  any grounds on which he should not be removed from or required to leave the United Kingdom.

 

(3)  A statement under subsection (2) shall not repeat reasons or grounds set out in—

 

(a)  the application mentioned in subsection (1)(a), or

 

(b) an application to which the immigration decision mentioned in subsection (1)(b) relates.”

 

Paragraph 4 of schedule 6 to the 2002 Act provides:

“Earlier Appeal

 

In the application of section 96

 

(a)  a reference to an appeal or right of appeal under a provision of this Act includes a reference to an appeal or right of appeal under the Immigration and Asylum Act 1991.

 

(b)  a reference to the requirements imposed under this Act includes a reference to requirement of a similar nature imposed under that Act.

 

(c)  a reference to a statement made in pursuance of a requirement imposed under a provision of this Act includes a reference to anything done in compliance with a requirement of a similar nature under that Act, and

 

(d)  a reference to notification by virtue of this Act includes a reference to notification by virtue of any other enactment.”

 

Section 96 of the 2002 Act (as amended by section 30 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004) sets out a certification procedure which, in the circumstances therein specified precludes any right of appeal under section 82 against certain new decisions.  Section 96, as amended, provides:

“Earlier Right of Appeal

 

(1)  An appeal under section 82(1) against an immigration decision (‘the new decision’) in respect of a person, may not be brought if the Secretary of State or an immigration officer certifies—

 

(a)  that the person was notified of a right of appeal under that section against another immigration decision (‘the old decision’) (whether or not an appeal was brought or whether or not any appeal brought has been determined),

 

(b)  that the claim or application to which the decision relates relies on a matter that could have been raised in an appeal against the old decision, and

 

(c)  that, in the opinion of the Secretary of State, or the immigration officer, there is no satisfactory reason for this matter not having been raised in an appeal against the old decision.

 

(2)  An appeal under section 82(1) against an immigration decision (‘the new decision’) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies—

 

(a)  that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,

 

(b)  that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and

 

(c)  that in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in response to that notice.”

 

The purpose of the foregoing provisions was, broadly speaking, to remove an individual’s right of appeal, where he has exercised a previous right of appeal against a decision, which has failed and when he now seeks to rely on new material which could, and ought to, have been raised in the previous appeal.

[3]        It was a matter of agreement in the present case between counsel for both sides as to how the power of certification in section 96 falls to be exercised by the respondent or an immigration officer.  It was furthermore accepted by senior counsel for the petitioner that, in the present case, the respondent had been justified in determining that the three factors set out in section 96(2) of the 2002 Act, which have to be met before certification can occur, had been met in the present case.  But that is not the end of the matter.  The exercise under section 96 has been held to involve a further stage in the decision making process, before the right of appeal can be excluded.  The way in which matters should be addressed was set out in the decision of Stadlen J in R (on the application of J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin) at paragraph 106, a decision which has been followed and applied in subsequent decisions by the courts in both England and Wales and Scotland.  At paragraph 106 his Lordship was to the following effect:

“Under section 96(1) and (2) before the Secretary of State can lawfully decide to certify, she has to go through a four stage process.  First she must be satisfied that the person was notified of a right of appeal under section 82 against another immigration decision (section 96(1)) or that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision (section 96(2)).  Second she must conclude that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision (section 96(1)(b)) or that the new decision relates to an application or claim which relies on a matter that should have been but was not raised in a statement made in response to that notice (section 96(2)(b)).  Third she must form the opinion that there is no satisfactory reason for the matter not having been raised in an appeal against the old decision (section 96(1)(c)) or that there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice (section 96(2)(c)).  Fourth she must address her mind to whether, having regard to all relevant factors, she should exercise her discretion to certify and conclude that it is appropriate to exercise the discretion in favour of certification"  (emphasis added)

 

[4]        The one remaining point argued by the petitioner was that, in carrying out the certification procedure, in the present case, under section 96, the decision in relation to which is to be found in the said letter of 1 September 2014 (6/2 of process), the respondent failed to go through the fourth stage in the process, set out in the passage cited from Stadlen J’s judgment.  That fourth stage, it will be noted, requires the respondent to carry out an exercise of discretion.  While that is not expressly required in terms of the relevant legislation, it was common ground that, having regard to the nature of the certification process and its effect, such a requirement falls to be implied in all cases where the powers under section 96 were being exercised.

[5]        Having identified the one issue now remaining in this petition, and the relevant legislative provisions, it is appropriate for me to set out some the material history of the petitioner which has led to the present petition being presented.  The petitioner is a Zimbabwean who was born on the 6 August 1971.  He arrived in the United Kingdom on 5 June 1994 as a visitor with leave to remain for six months.  A further application to remain was refused on 11 November 1994.  He overstayed.  On 25 September 2000 the respondent received a letter from the petitioner’s solicitors stating that he wanted to regularise his leave to remain in the United Kingdom under the powers then in place, the Regularisation Scheme for Overstayers.  On 7 January 2003 he was granted indefinite leave to remain in the United Kingdom under the just mentioned scheme.  Due to a change of address the petitioner did not receive notification of that decision until May 2005.

[6]        On 9 July 2008 the petitioner was convicted at Nottingham Crown Court of five counts of making a false instrument and knowingly possessing a false, or improperly obtaining, another’s identity document with intent.  He was sentenced to 2 years and 6 months’ imprisonment.  On 1 October 2008 he appealed against his conviction, sentence and a confiscation order.  On 16 December 2008 he was refused leave to appeal.

[7]        On 28 August 2008 he was served with a Liability to Automatic Deportation Notice and was given the opportunity to provide any information that he wished to be taken into account by the respondent when considering whether to pursue deportation action.  On 4 September 2008 the petitioner responded by submitting a partly completed questionnaire in which he claimed that his name was Munyaradzi Matiyena, born 10 May 1975 and that he was a British citizen.  He failed to provide any evidence to support that claim.  On 17 April 2009 the petitioner’s custodial sentence ended and he was detained under immigration powers.  On 27 April 2009 the petitioner was served with a signed deportation order along with a Notice of Decision to Automatic Deportation letter.  He appealed against that decision on 1 May 2009, the appeal being dismissed on 26 June 2009.  He sought a High Court judicial review of that decision on 2 July 2009.  On 6 July 2009 the petitioner was released with reporting restrictions and electronic monitoring by the Home Office.

[8]        On 16 July 2009 the petitioner’s application for judicial review was refused and his appeal rights became exhausted on that day.  On 22 November 2009 the petitioner’s release address was visited as the electronic monitoring equipment had been unplugged.  On 6 April 2010 and 13 April 2010 the petitioner failed to report as required.  He was issued with a warning letter on 20 April 2010.  He made contact with the Home Office on 11 May 2010 and stated that he failed to report as he was now working.  He was informed that he had no right to work and he was instructed to resume his reporting, which he resumed.  In the event, however, he failed to report again on 19 July 2011 and a further warning letter was issued and sent to him by the court by recorded delivery on 28 September 2011.  The warning letter was returned and the petitioner was recorded as an absconder on 8 February 2012.  On 14 April 2014 the petitioner was encountered and arrested by Nottingham Police and re‑detained for failing to comply with his release restriction.  On 4 July 2014 further representations were submitted on the petitioner’s behalf in which he requested that the deportation order against him should be revoked.  Those representations included the following assertions.

1.         Since being in United Kingdom the petitioner had entered into a relationship with his ex‑partner Clovella Moore which lasted from 1998 until 2012.

2.         The petitioner had separated from Ms Moore but they had three British citizen children in the United Kingdom.

3.         The petitioner had contact with his children prior to his detention and that Ms Moore required his support in order to raise the children.

4.         The petitioner had established a private life and family life in the United Kingdom.

5.         The petitioner’s case should be considered by reference to the case of MS [SSHD] CSIH 52 paragraph 28.  He had “a good arguable case for consideration” within the immigration rules.

6.         He had been absent from Zimbabwe for 20 years having left there in 1994.

[9]        The foregoing representations were treated by the respondent as an application to revoke the subsisting deportation order in relation to the petitioner.  The application was considered by the respondent and resulted in the letter of 1 September 2014 to which these proceedings relate.  In that letter, at paragraph 15 the respondent wrote:

“Your client’s application has been considered in accordance with section 32(6) of the UK Borders Act 2007.  Revocation of the deportation order in your client’s case would only be appropriate if refusal to revoke would be contrary to our obligations under the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or a decision was made to make a new deportation order decision under either section 32(5) of the UK Borders Act 2007 or under section 3 of the Immigration Act 1971.  For the reasons given below it is not considered that refusal to that revoke the Deportation Order would result in any such breach and it is not therefore accepted that there is any basis to justify revoking the deportation order against him.”

 

The respondent in the next paragraph went on to set out a summary of the law in relation to article 8 of the European Convention on Human Rights (ECHR) and at paragraph 17 she stated:

“Your client’s claims under article 8 were previously considered in our decision to make a Deportation Order of 28 April 2009 and the subsequent appeal of 26 June 2009.  At the time of our decision, the Home Office noted and gave consideration to your client’s son in the United Kingdom, namely Morello Farai Muchena‑Moore, born 2 August 1999.  However, when submitting his appeal on 1 May 2009 your client stated that he did not have any children in the United Kingdom.  This was further confirmed in his appeal determination at paragraph 8, when the tribunal noted:

 

‘He specifically denied that he had anything to do with the child whose birth certificate appeared in the Respondent’s bundle at page 01.’”

 

The respondent then, at paragraph 18, set out paragraphs 13 to 19 of the Immigration Judge’s decision to which reference is made, in which it was found that the petitioner was a foreign criminal to whom none of the exceptions applied and that he was liable for automatic deportation.  It was noted that on 15 July 2009 the petitioner’s application for High Court review of that decision was refused on the ground that it had not revealed any arguable error of law on the part of the tribunal.

[10]      The respondent proceeded in her letter to set out in paragraphs 21 to 23, the relevant legal provisions under which the petitioner’s present claim fell to be considered.  There was no dispute that, in so doing, the respondent set out the legal position correctly.  In the next section of the letter headed “Family life with children” the respondent recorded that the present claim is that the petitioner has an established family life in the United Kingdom with three children.  In paragraph 25 the respondent stated:

“The Home Office’s duty to safe guard the welfare of children as set out in section 55 of the Borders, Citizenship and Immigration Act 2009 has been taken into account and the bests interests of your children have been a primary consideration making this decision.  However, the best interests of the child are not the only or paramount consideration and must be balanced against other relevant factors, including the public interest in deporting foreign criminals, to determine whether your deportation is proportionate.  Paragraphs 398 and 399 of the Immigration Rules take into account that a child’s best interests are capable of outweighing the public interest and set out in what circumstances that will be the case.”

 

At paragraph 26 of the letter the respondent stated:

“The requirements of the exception to deportation on the basis of family life with a child as set out at paragraph 399(a) of the Immigration Rules.  This exception applies where:

 

The foreign criminal has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

 

(i)  the child is a British citizen;  or

 

(ii)  the child has lived in the UK continuously for at least 7 years immediately preceding the date of the immigration decision;  and in either case

 

(a)  it would be unduly harsh were a child to live in the country to which the person is to be deported;  and

 

(b)  it would unduly harsh for a child to remain in the UK without the person who is to be deported.”

 

In the following paragraphs 27 to 34 the respondent dealt in detail with what she described as “Consideration of your client’s children”, to which reference is made.  She noted at paragraph 28:

 

“At your client’s aforementioned appeal hearing against deportation, he relied on his claim to be British as the reason why he should not be deported.  Your client did not choose to rely on having established a family life with his partner or children, when he had the opportunity to do so.”

 

At paragraph 29 the respondent stated:

“your client’s request to revoke the Deportation Order against him is now primarily reliant on his claims to family life with Morello who he previously denied having anything to do with and two other children he did not mention prior to or during his appeal hearing.  It is also noted that your client did not submit any evidence to claims of family life until he was encountered and re‑detained under Immigration Services powers after absconding from the Home Office.”

 

[11]      The respondent, having considered the question as to whether the material before her supported the existence of a genuine and subsisting parental relationship between the petitioner and the said children concluded that this was not so.  While it was accepted, at paragraph 32 that relocating the children to Zimbabwe might cause some disruption to their present education, no evidence, it was said, had been adduced which would indicate that it would be unduly harsh for them to do so should their mother decide that this course of action was in the best interests of her children.  The respondent also found at paragraph 34 that:

“You have not provided any evidence to demonstrate that it would be unduly harsh for your client’s children and his claimed child to remain in the United Kingdom without him.  The children have had the care of their mother since their births, your client’s imprisonment, during his release into the community, and his subsequent detention and their mother is still able to care for them in the United Kingdom.  It is noted that none of the children is dependent on him for their right to remain in the United Kingdom.”

 

The best interests of the children were then considered by the respondent at paragraphs 35 to 40.  Having considered the material placed before her, the respondent concluded at paragraph 39:

“Therefore, having considered all available information it is not accepted that your client meet (sic) the requirements of the exception to deportation on the basis of family life of the child.”

 

The next heading in the decision letter is “Family life with a partner”.  Under this heading, at paragraphs 41 to 47 the respondent, under reference to paragraph 399(b) of the Immigration Rules and, in particular to the exception contained therein, the respondent concluded there was no evidence to indicate that the petitioner and Ms Moore have a genuine and subsisting relationship, and in particular, that there was no evidence that they have co‑habited together at any point during any relationship they claimed to have had.  It was furthermore noted, that in previous submissions:

“Your client did not rely on his relationship with Ms Moore and he made no claims to having a partner in the United Kingdom with whom he had children.  You have also stated that your client’s relationship ended in 2012.”

 

In her reasons the respondent also concluded that it was not accepted that the petitioner’s claimed relationship with Ms Moore was formed when he was in the United Kingdom lawfully but when his immigration status was precarious.

[12]      Under the heading “Private life” the respondent proceeded to consider the private life exception set out in paragraph 399A of the Immigration Rules.  This exception applies where:

“The foreign criminal has been lawfully resident in the UK for most of his life, and

 

(b)  the foreign criminal is socially and culturally integrated in the UK, and

 

(c)  there would be very significant obstacles to the foreign criminal’s integration into the country to which he is proposed to be deported.”

 

The respondent, with detailed reasons concluded that this exception did not apply to the petitioner’s case.

            In paragraph 52 the respondent stated that:

“As the exceptions to deportation do not apply to your client, consideration has been given to whether there are very compelling circumstances such that he should not be deported.  There is significant public interest in deporting him for the following reasons.”

 

At paragraphs 53 to 61 the respondent set out, in detail, the petitioner’s history and in particular his criminal conduct in this country.  At paragraph 62 to 67 the respondent considered a particular aspect of the petitioner’s claim which related to the child Morgan’s medical educational needs.  Having carefully considered the position in that respect she concluded that this did not amount to a very compelling factor in this case which outweighed the significant public interest in deporting the petitioner.

[13]      At paragraph 68 to 69 under the heading “Article 8 conclusion” the respondent stated:

“68.  Therefore, having considered all available information about your client’s circumstances including the best interests of his children, it is considered that his deportation would not breach the United Kingdom’s obligations under ECHR article 8 because the public interest in deporting him outweighs your client’s right to private life and family life.

 

69.  The Secretary of State has considered the best interests of his children in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009, and is satisfied that this decision is in line with the duties set out therein.”

 

It should be noted that, before this court the actual reasoning and treatment of the material set out in the discussion in the aforementioned paragraph was not, in my judgment, in any significant way undermined by anything said on the petitioner’s behalf and, in particular, senior counsel for the petitioner accepted the averments of the respondent in answer 6 to the petition in relation to the lack of evidence in support of the various aspects of the petitioner’s case.

            At paragraph 70 of the decision letter the respondent wrote:

“Careful consideration has been given as to whether your client’s situation engages any other articles of the ECHR.  There has been no claims made to this effect, and there is nothing to suggest your client’s rights under any other article of the ECHR would have been breached by his removal from the United Kingdom.”

 

The respondent then, under reference to the case of Mehmet (R) v SSHD [2011] EWHC 741 (Admin) and section 32(6) of the UK Borders Act 2007, concluded that at the time the deportation order was made the petitioner’s circumstances disclosed no reason why he should be excluded from consideration for deportation under section 32(5) of the Borders Act 2007 by virtue of any of the exceptions set out in section 33 of that Act.  At paragraphs 76 to 77 the respondent stated:

“In order to protect the wider interests and the rights of the public it is vital to act in the interests of the prevention of crime and disorder.  In pursuit of that aim and having weighed up your client’s interests, it is believed that any interference with his family or private life would be legitimate, necessary and proportionate and in accordance with the law, and that his removal from the United Kingdom would not cause a breach of his rights to family or private life.  In particular, it is not considered that his is a case where removal would result in a flagrant denial of his right to respect for his family or private life.

 

Your submissions have been fully considered, but we are satisfied that following consideration of the claims made, in accordance with section 32(6) of the UK Borders Act 2007 (as set out above) there is no basis to justify the revocation of your client’s Deportation Order.  Deportation remains a proportionate response in this case.”

 

The respondent then at paragraphs 78 to 80 sets out that part of her decision which is attacked in these proceedings.

[14]      Senior counsel for the petitioner accepted, at the outset of his submissions, that the three statutory criteria set out in section 96(1) of the 2002 Act were met in this case.  The complaint, on behalf of the petitioner, as previously noted, was that the respondent had not gone a further stage, by asking herself whether or not, notwithstanding that the statutory criteria were met, she should exercise her discretion, having regard to all the relevant circumstances, by allowing an appeal to be brought.  It was important, in this connection to keep in mind that but for section 96 certification, the appellant would have had a right of appeal.

[15]      It appears to me that the primary decision I have to reach is whether or not, on reading the decision letter as a whole, I am satisfied that the respondent has failed to carry out the fourth stage of the decision making process, that is whether, having reached the view that certification otherwise falls to be made, she has considered, in the exercise of her discretion, whether, or not, having regard to all material and relevant factors placed before her, the petitioner should have the right to appeal.  If I am to find against the respondent in that respect there is still a further question to be addressed, namely, whether or not any error on the respondent’s part, in that respect, was material.  If it was inevitable that the respondent would have reached the conclusion that certification should proceed, even after having indulged in a proper exercise of her discretion, then the error would be immaterial and the present petition would fail.

[16]      As regards the first question, as previously noted, it was accepted on both sides of bar that I should follow the decision of Stadlen J in R (on the application of J).  It was not even suggested that that decision, in respect of the point with which I am concerned, required to be significantly modified in any respect.

[17]      It has to be recognised that, in the present case, the decision letter to which the proceedings relate was a response to a letter for those acting for the petitioner, which was treated as containing a further human rights claim to revoke the deportation order in relation to the petitioner - 6/1 of process.  The decision letter, in its bulk, addresses the merits of any such claim to revoke the deportation order.  Prima facie, at least, only three paragraphs in the letter, namely paragraphs 78 to 80, address specifically the question of certification.  I have come to the conclusion that, notwithstanding the submission made to the contrary by counsel for the respondent, that it cannot readily be said that those paragraphs 78 to 80 contain within them, any real hint that the respondent was, at that stage of matters, addressing the fourth stage of the decision making process, as desiderated by Stadlen J in the passage cited above.  While the preceding numbered paragraphs 78 to 80, in my opinion, carefully and fully addressed the question of whether there was ground for revoking the deportation order in the view of the respondent, that is not the issue and the question has to be whether the right of appeal against any such decision should be precluded by virtue of the certification process.  I am of the opinion that, at least in the circumstances of this case, it is not legitimate to look at the very full considerations set out in the passages directed as to whether there was, in the judgment of the respondent, a case for revocation of the deportation order and to determine that these can be said to form an implied basis for this court being satisfied that the fourth stage of the certification process, the exercise of discretion, had in fact been carried out.  Such an argument was, in my judgment, correctly rejected by His Honour Judge Pelling QC in Mahmood v Secretary of State for the Home Department [2014] EWHC 259 (Admin) at paragraph 34.  After having approved of the approach adopted by Stadlen J his Lordship at paragraph 27 noted that the respondent’s own policy guidance was in these terms:

“The High Court case of R v J [2009] EWHC 705 (Admin) found that there was a fourth stage to the consideration that must be taken when certifying under section 96 … Decision makers should also consider whether, having regard to all relevant factors it is appropriate to exercise discretion in favour of certification.  The decision letter should reflect that consideration has taken place and that it has been decided that it is appropriate to exercise discretion where a certificate is issued.  Factors to be considered include the prospects of a successor’s appeal (sic) for the underlining claim, and, in particular where the asylum and article 3 issues are raised, the reason why the claim was not advanced to the original appeal and the impact of that explanation on the credibility of the fresh claim.  The fact that an applicant may have lied previously should be taken into account but it is not necessarily determinative of the issue.”

 

In paragraph 31 his Lordship continued:

“In my judgment before this case could be certified the decision maker would have to explain with reasons why discretion was to be exercised in favour of certification, notwithstanding the evidence to which reference was made on page 2 of the decision letter.”

 

His Lordship, further in paragraphs 33 to 34 concluded:

“33.  The final point that I need to address is a submission made on behalf of the defendant that I could safely conclude that the relevant exercise required by Stadlen J, as the fourth stage, had been undertaken, notwithstanding that it was not expressly identified as having been undertaken in the Decision Letter by reference to a consideration of whether or not permission should be given outside the Immigration Rules which is set out on page 6 and following of the letter.

34.  The question which was being addressed there was not the question of whether or not there should certification, for certification had not, at any rate expressly, been considered down to this point in the letter.  What these paragraphs addressed is whether or not it was appropriate to allow the claimant to remain in the UK exceptionally outside the rules, having in context rejected the claim to remain on an partnership basis by reference to appendix FM of the Immigration Rules.  It came immediately following an acknowledgment of the effect of the Upper Tribunal’s decision in MF and following from an acknowledgement that when considering whether the case was clearly unfounded, it was necessary to consider the more general article 8 test identified in cases such as Razgar and Huang.  That reasoning was not referable to the decision to certify under section 96, which it will be remembered is not certification on the basis that the claim was clearly unfounded but a certification based upon late notification.”

 

His Lordship continued at paragraph 35 as follows:

“As far as I can see the first expressed mentioned of certification under section 96 comes after this passage in the Decision Letter and starts at page 7 of the eight page Decision Letter.  As I have explained already in this judgment, the decision maker simply rehearses the provisions within section 96(1) and concludes that it was appropriate to certify, without making any mention, much less attempting to apply, the four stages identified by Stadlen J.”

 

It appears to me that those last remarks can be applied to the position in the present case as I have endeavored to explain above.

[18]      The decision of Stadlen J has been followed and applied in some subsequent Scottish cases.  Though it is not binding on me, as I have previously noted, I was not invited by either side of the bar to hold that it was in any material respect wrong.  In H v Secretary of State for the Home Department 2012 SLT 1003, Temporary Judge Beckett QC at paragraphs 57 to 59 was to the following effect:

“(57)  Counsel for the respondent did not dispute that before certifying under s96, the Secretary of State requires to apply the four stage test explained in the case of J and that the fourth stage of that test involved the exercise of a discretion as to whether to certify or not.  The effect of certification was of course to deny a right of appeal against the Secretary of State’s decision.  For that reason it ought to be exercised carefully, with anxious scrutiny in the context of a human rights claim.  What will be required by way of reasons for a decision to certify will vary according to the circumstances of the particular case.  There may be some cases where there is not much to consider and very little explanation may be required, although at least some acknowledgment that the decision maker had discretion, and exercised it, may be advisable.  In other cases a rather fuller explanation may be required to demonstrate that discretion was exercised properly.

 

(58)  In this case, the new material which had not been articulated in response to the ’One-Stop Notice’ related to claims about the threat posed to the petitioner by her uncle in Nigeria.  That could be seen in paras 17-20 of the decision letter which I have quoted at para 9 above.

 

(59)  In this case the effect of certification was to prevent the petitioner from appealing any aspect of her claim.  The claim includes an art. 8 argument focused on the best interests of the petitioner’s three children who were born in this country and one of whom is disabled.  In those circumstances, it might be thought that there would be a clear explanation of why certification was being made.”

 

I would respectfully agree with the approach to matters rehearsed in those passages.  While there may be a danger in taking an over‑formalistic attitude to such matters, by focusing on the form of the decision maker’s expression of his decision, rather than looking at the substance of the decision taken as a whole, so that, for example the absence of the words “in the exercise of my discretion” or an expressed reference to the fourth stage of the decision making process might be regarded automatically as bad in law, I do consider that it is necessary for the decision maker to set out material, however brief, in the particular circumstances of the specific case, which can clearly satisfy the informed reader that the fourth stage of the exercise has both been identified and that that stage has, in fact, been gone through.  On this point I prefer the reasoning of the court in H to that of Lord Stewart at para 24 K v Secretary of State for the Home Department 2014 SLT 587.

[19]      In the result, therefore, I found myself in the same position as the court in Mahmood as set out in paragraph 35 of the court’s decision cited above.  Accordingly I consider the decision maker wrongly failed to carry out the legal requirements in certifying under section 96.

[20]      I require, however, to consider whether or not this conclusion entitles the petitioner to the remedy of reduction of the decision which he seeks here.  Unlike the court in Mahmood I have come to the clear conclusion that I can be satisfied, on the material before me, that had the fourth stage of the decision making process been identified, and applied, in this case the same outcome would have inevitably followed.  I accept the submission, made on behalf of the petitioner, that a court should be slow to reach such a conclusion in particular in an article 8 case.  I was referred, in this connection, to the decision in Ganesabalan v Secretary of State for the Home Department [2014] EWCH (admin) 2712 at paras 37, 40 and 43.  As pointed out by the court, in that case, at paras 37 and 39, the question for the court is whether or not the outcome would have been the same had the decision maker addressed the question of discretion so that the error in failing to do so cannot be regarded as having been material.  In urging me not to reach such a conclusion in the present case, senior counsel for the petitioner referred also to Khan v Secretary of State for Home Department [2015] CSIH 29, Zovumbas v Secretary of State for the Home Department [2014] SC (UKSC) 75, Peart v Secretary of State for the Home Department [2012] EWCA civ 568, Mirza v Secretary of State for the Home Department [2015] CSIH 28, and K v Secretary of State for the Home Department [2015] SLT 244.

[21]      The present case, as has been seen, involves the petitioner seeking the revocation of a validly subsisting deportation order, issued after his conviction for serious criminal conduct.  The petitioner has been convicted of offences for which he has been sentenced to a period of imprisonment of less than 4 years but at least 12 months.  Accordingly in terms of paragraph 398 of the Immigration Rules the public interest requires his deportation unless an exception to deportation applies.  The respondent considered carefully the material before her to support the possible existence of such an exception, I do not intend to rehearse, again, what is set out fully in the decision letter in that respect.  Suffice to say that I have been unable to detect any feature in that material which would have precluded the respondent, had she carried out the fourth stage of the process properly, from reaching the conclusion that certification was appropriate.  The petitioner’s case was not simply as it was put in discussion before me an “unpromising” one.  It is such that, in my judgment, it would have been inevitable that had the discretion been properly addressed by the respondent, it would have exercised against him.  In assessing the proportionality of deportation, little weight should be given to a private life established by a person when he has a precarious immigration status or is in the United Kingdom unlawfully, - see the 2002 Act section 117B(4) and (5).  As was set out in the respondent’s answers to the petitioner’s case:

“There is a clear and constant line of ECtHR jurisprudence that when a person’s family or private life is established when his immigration status is precarious, his removal will be disproportionate only in exceptional cases:  R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720.  In approaching the question of whether removal is a proportionate interference with a person’s rights under article 8 ECHR, the scales are heavily weighted in favour of deportation and something very compelling (which will be ‘exceptional’) is required to outweigh the public interest in removal:  MF (Nigera) v Secretary of State for the Home Department [2014] 1 WLR 544 11.”

 

[22]      I have been unable to identify any very compelling or exceptional factor relied upon by the petitioner, having regard to the whole circumstances of the case, which would have led the respondent, in an exercise of her discretion, to consider that, notwithstanding the requirements of section 96 having been met, certification was inappropriate (a)  the nature and extent of the petitioner’s offending about which there were, apparently, no mitigating factors, (b)  the position adopted by the petitioner before the tribunal hearing in 2004, in contrast with the position he now adopts regarding his nationality, (c)  the previous failure by the petitioner to disclose, at an earlier stage, the material he now relies upon, (a relevant factor to be considered in the exercise of the discretion, though not conclusive in itself, as recognised by the court at paragraph 31 in the decision of Mahmood), (d)  the absence of any material, and appropriate, evidence proffered, or offered, in support of his article 8 case (in this connection I should repeat that senior counsel for the petitioner, at the outset of his submissions, accepted that what the respondent avers in answer 6 in that respect could not be gainsaid), (e)  the petitioner’s immigration history were all, taken together with the lack of any realistic prospect of success in any appeal, factors which would have led the respondent, had she exercised her discretion, inevitably to the conclusion that certification still required to be made and that no exceptional circumstances could be identified to outweigh that conclusion.  Put another way, nothing placed before the respondent, on behalf of the petitioner, would appear to me to raise any real possibility that the circumstances relied upon by the petitioner outweighed the very significant public interest in deporting him, such as would justify the exercise of the discretion in his favour.  For the foregoing reasons I, therefore, dismiss the petition.

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 108

 

P90/15

OPINION OF LORD CLARKE

In the petition

KENNETH MUCHENA (AP)

Petitioner;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

for Judicial Review of a decision dated 1 September 2014, certifying the petitioner’s further submissions under section 96(1) of the Nationality, Immigration and Asylum Act 2002

 

Petitioner:  Lindsay QC, Winter;  Drummond Miller LLP

Respondent:  Pirie;  Office of the Advocate General

11 August 2015

[1]        In this petition for judicial review, the petitioner seeks reduction of a certification under section 96(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), contained in a letter dated 1 September 2014, and a consequential decision by the respondent contained in the same letter to refuse to revoke a deportation order relating to the petitioner.

[2]        The relevant legislation is as follows: 

Section 82(1)A of the 2002 Act provides that:

“Where an immigration decision is made in respect of a person he may appeal to the Tribunal.”

 

Section 82(4) provides:

 

“(4)  The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.”

 

One of the aforementioned exceptions and limitations is set out in section 96 of the 2002 Act.  When a right of appeal does exist, section 82 sets out the grounds on which such an appeal may be brought including grounds relating to the Geneva Convention and the Human Rights Act 1998.  Section 85 sets out matters to be considered on an appeal made under section 82.  These include any matter raised in a statement made by a person under section 120 in response to what is commonly known as a “one‑stop notice”, which constitutes a ground of appeal of a kind listed in section 84(1) of the 2002 Act.

Section 85 includes the following:

“(1)  An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).

 

(2)  If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.

 

(3)  Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.”

 

Section 120 makes provision for service of a “one‑stop notice” upon a person who has applied to enter or remain in the UK or in respect of which an immigration decision has been taken.  It provides as follows:

“120  Requirement to state additional grounds for application

(1)  This section applies to a person if—

 

(a)  he has made an application to enter or remain in the United Kingdom, or

 

(b)  an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him

 

(2)  The Secretary of State or an immigration officer may, by notice in writing, require the person to state —

 

(a)  his reasons for wishing to enter or remain in the United Kingdom, and

 

(b)  any grounds on which he should be permitted to enter or remain in the United Kingdom, and

 

(c)  any grounds on which he should not be removed from or required to leave the United Kingdom.

 

(3)  A statement under subsection (2) shall not repeat reasons or grounds set out in—

 

(a)  the application mentioned in subsection (1)(a), or

 

(b) an application to which the immigration decision mentioned in subsection (1)(b) relates.”

 

Paragraph 4 of schedule 6 to the 2002 Act provides:

“Earlier Appeal

 

In the application of section 96

 

(a)  a reference to an appeal or right of appeal under a provision of this Act includes a reference to an appeal or right of appeal under the Immigration and Asylum Act 1991.

 

(b)  a reference to the requirements imposed under this Act includes a reference to requirement of a similar nature imposed under that Act.

 

(c)  a reference to a statement made in pursuance of a requirement imposed under a provision of this Act includes a reference to anything done in compliance with a requirement of a similar nature under that Act, and

 

(d)  a reference to notification by virtue of this Act includes a reference to notification by virtue of any other enactment.”

 

Section 96 of the 2002 Act (as amended by section 30 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004) sets out a certification procedure which, in the circumstances therein specified precludes any right of appeal under section 82 against certain new decisions.  Section 96, as amended, provides:

“Earlier Right of Appeal

 

(1)  An appeal under section 82(1) against an immigration decision (‘the new decision’) in respect of a person, may not be brought if the Secretary of State or an immigration officer certifies—

 

(a)  that the person was notified of a right of appeal under that section against another immigration decision (‘the old decision’) (whether or not an appeal was brought or whether or not any appeal brought has been determined),

 

(b)  that the claim or application to which the decision relates relies on a matter that could have been raised in an appeal against the old decision, and

 

(c)  that, in the opinion of the Secretary of State, or the immigration officer, there is no satisfactory reason for this matter not having been raised in an appeal against the old decision.

 

(2)  An appeal under section 82(1) against an immigration decision (‘the new decision’) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies—

 

(a)  that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,

 

(b)  that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and

 

(c)  that in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in response to that notice.”

 

The purpose of the foregoing provisions was, broadly speaking, to remove an individual’s right of appeal, where he has exercised a previous right of appeal against a decision, which has failed and when he now seeks to rely on new material which could, and ought to, have been raised in the previous appeal.

[3]        It was a matter of agreement in the present case between counsel for both sides as to how the power of certification in section 96 falls to be exercised by the respondent or an immigration officer.  It was furthermore accepted by senior counsel for the petitioner that, in the present case, the respondent had been justified in determining that the three factors set out in section 96(2) of the 2002 Act, which have to be met before certification can occur, had been met in the present case.  But that is not the end of the matter.  The exercise under section 96 has been held to involve a further stage in the decision making process, before the right of appeal can be excluded.  The way in which matters should be addressed was set out in the decision of Stadlen J in R (on the application of J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin) at paragraph 106, a decision which has been followed and applied in subsequent decisions by the courts in both England and Wales and Scotland.  At paragraph 106 his Lordship was to the following effect:

“Under section 96(1) and (2) before the Secretary of State can lawfully decide to certify, she has to go through a four stage process.  First she must be satisfied that the person was notified of a right of appeal under section 82 against another immigration decision (section 96(1)) or that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision (section 96(2)).  Second she must conclude that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision (section 96(1)(b)) or that the new decision relates to an application or claim which relies on a matter that should have been but was not raised in a statement made in response to that notice (section 96(2)(b)).  Third she must form the opinion that there is no satisfactory reason for the matter not having been raised in an appeal against the old decision (section 96(1)(c)) or that there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice (section 96(2)(c)).  Fourth she must address her mind to whether, having regard to all relevant factors, she should exercise her discretion to certify and conclude that it is appropriate to exercise the discretion in favour of certification"  (emphasis added)

 

[4]        The one remaining point argued by the petitioner was that, in carrying out the certification procedure, in the present case, under section 96, the decision in relation to which is to be found in the said letter of 1 September 2014 (6/2 of process), the respondent failed to go through the fourth stage in the process, set out in the passage cited from Stadlen J’s judgment.  That fourth stage, it will be noted, requires the respondent to carry out an exercise of discretion.  While that is not expressly required in terms of the relevant legislation, it was common ground that, having regard to the nature of the certification process and its effect, such a requirement falls to be implied in all cases where the powers under section 96 were being exercised.

[5]        Having identified the one issue now remaining in this petition, and the relevant legislative provisions, it is appropriate for me to set out some the material history of the petitioner which has led to the present petition being presented.  The petitioner is a Zimbabwean who was born on the 6 August 1971.  He arrived in the United Kingdom on 5 June 1994 as a visitor with leave to remain for six months.  A further application to remain was refused on 11 November 1994.  He overstayed.  On 25 September 2000 the respondent received a letter from the petitioner’s solicitors stating that he wanted to regularise his leave to remain in the United Kingdom under the powers then in place, the Regularisation Scheme for Overstayers.  On 7 January 2003 he was granted indefinite leave to remain in the United Kingdom under the just mentioned scheme.  Due to a change of address the petitioner did not receive notification of that decision until May 2005.

[6]        On 9 July 2008 the petitioner was convicted at Nottingham Crown Court of five counts of making a false instrument and knowingly possessing a false, or improperly obtaining, another’s identity document with intent.  He was sentenced to 2 years and 6 months’ imprisonment.  On 1 October 2008 he appealed against his conviction, sentence and a confiscation order.  On 16 December 2008 he was refused leave to appeal.

[7]        On 28 August 2008 he was served with a Liability to Automatic Deportation Notice and was given the opportunity to provide any information that he wished to be taken into account by the respondent when considering whether to pursue deportation action.  On 4 September 2008 the petitioner responded by submitting a partly completed questionnaire in which he claimed that his name was Munyaradzi Matiyena, born 10 May 1975 and that he was a British citizen.  He failed to provide any evidence to support that claim.  On 17 April 2009 the petitioner’s custodial sentence ended and he was detained under immigration powers.  On 27 April 2009 the petitioner was served with a signed deportation order along with a Notice of Decision to Automatic Deportation letter.  He appealed against that decision on 1 May 2009, the appeal being dismissed on 26 June 2009.  He sought a High Court judicial review of that decision on 2 July 2009.  On 6 July 2009 the petitioner was released with reporting restrictions and electronic monitoring by the Home Office.

[8]        On 16 July 2009 the petitioner’s application for judicial review was refused and his appeal rights became exhausted on that day.  On 22 November 2009 the petitioner’s release address was visited as the electronic monitoring equipment had been unplugged.  On 6 April 2010 and 13 April 2010 the petitioner failed to report as required.  He was issued with a warning letter on 20 April 2010.  He made contact with the Home Office on 11 May 2010 and stated that he failed to report as he was now working.  He was informed that he had no right to work and he was instructed to resume his reporting, which he resumed.  In the event, however, he failed to report again on 19 July 2011 and a further warning letter was issued and sent to him by the court by recorded delivery on 28 September 2011.  The warning letter was returned and the petitioner was recorded as an absconder on 8 February 2012.  On 14 April 2014 the petitioner was encountered and arrested by Nottingham Police and re‑detained for failing to comply with his release restriction.  On 4 July 2014 further representations were submitted on the petitioner’s behalf in which he requested that the deportation order against him should be revoked.  Those representations included the following assertions.

1.         Since being in United Kingdom the petitioner had entered into a relationship with his ex‑partner Clovella Moore which lasted from 1998 until 2012.

2.         The petitioner had separated from Ms Moore but they had three British citizen children in the United Kingdom.

3.         The petitioner had contact with his children prior to his detention and that Ms Moore required his support in order to raise the children.

4.         The petitioner had established a private life and family life in the United Kingdom.

5.         The petitioner’s case should be considered by reference to the case of MS [SSHD] CSIH 52 paragraph 28.  He had “a good arguable case for consideration” within the immigration rules.

6.         He had been absent from Zimbabwe for 20 years having left there in 1994.

[9]        The foregoing representations were treated by the respondent as an application to revoke the subsisting deportation order in relation to the petitioner.  The application was considered by the respondent and resulted in the letter of 1 September 2014 to which these proceedings relate.  In that letter, at paragraph 15 the respondent wrote:

“Your client’s application has been considered in accordance with section 32(6) of the UK Borders Act 2007.  Revocation of the deportation order in your client’s case would only be appropriate if refusal to revoke would be contrary to our obligations under the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or a decision was made to make a new deportation order decision under either section 32(5) of the UK Borders Act 2007 or under section 3 of the Immigration Act 1971.  For the reasons given below it is not considered that refusal to that revoke the Deportation Order would result in any such breach and it is not therefore accepted that there is any basis to justify revoking the deportation order against him.”

 

The respondent in the next paragraph went on to set out a summary of the law in relation to article 8 of the European Convention on Human Rights (ECHR) and at paragraph 17 she stated:

“Your client’s claims under article 8 were previously considered in our decision to make a Deportation Order of 28 April 2009 and the subsequent appeal of 26 June 2009.  At the time of our decision, the Home Office noted and gave consideration to your client’s son in the United Kingdom, namely Morello Farai Muchena‑Moore, born 2 August 1999.  However, when submitting his appeal on 1 May 2009 your client stated that he did not have any children in the United Kingdom.  This was further confirmed in his appeal determination at paragraph 8, when the tribunal noted:

 

‘He specifically denied that he had anything to do with the child whose birth certificate appeared in the Respondent’s bundle at page 01.’”

 

The respondent then, at paragraph 18, set out paragraphs 13 to 19 of the Immigration Judge’s decision to which reference is made, in which it was found that the petitioner was a foreign criminal to whom none of the exceptions applied and that he was liable for automatic deportation.  It was noted that on 15 July 2009 the petitioner’s application for High Court review of that decision was refused on the ground that it had not revealed any arguable error of law on the part of the tribunal.

[10]      The respondent proceeded in her letter to set out in paragraphs 21 to 23, the relevant legal provisions under which the petitioner’s present claim fell to be considered.  There was no dispute that, in so doing, the respondent set out the legal position correctly.  In the next section of the letter headed “Family life with children” the respondent recorded that the present claim is that the petitioner has an established family life in the United Kingdom with three children.  In paragraph 25 the respondent stated:

“The Home Office’s duty to safe guard the welfare of children as set out in section 55 of the Borders, Citizenship and Immigration Act 2009 has been taken into account and the bests interests of your children have been a primary consideration making this decision.  However, the best interests of the child are not the only or paramount consideration and must be balanced against other relevant factors, including the public interest in deporting foreign criminals, to determine whether your deportation is proportionate.  Paragraphs 398 and 399 of the Immigration Rules take into account that a child’s best interests are capable of outweighing the public interest and set out in what circumstances that will be the case.”

 

At paragraph 26 of the letter the respondent stated:

“The requirements of the exception to deportation on the basis of family life with a child as set out at paragraph 399(a) of the Immigration Rules.  This exception applies where:

 

The foreign criminal has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

 

(i)  the child is a British citizen;  or

 

(ii)  the child has lived in the UK continuously for at least 7 years immediately preceding the date of the immigration decision;  and in either case

 

(a)  it would be unduly harsh were a child to live in the country to which the person is to be deported;  and

 

(b)  it would unduly harsh for a child to remain in the UK without the person who is to be deported.”

 

In the following paragraphs 27 to 34 the respondent dealt in detail with what she described as “Consideration of your client’s children”, to which reference is made.  She noted at paragraph 28:

 

“At your client’s aforementioned appeal hearing against deportation, he relied on his claim to be British as the reason why he should not be deported.  Your client did not choose to rely on having established a family life with his partner or children, when he had the opportunity to do so.”

 

At paragraph 29 the respondent stated:

“your client’s request to revoke the Deportation Order against him is now primarily reliant on his claims to family life with Morello who he previously denied having anything to do with and two other children he did not mention prior to or during his appeal hearing.  It is also noted that your client did not submit any evidence to claims of family life until he was encountered and re‑detained under Immigration Services powers after absconding from the Home Office.”

 

[11]      The respondent, having considered the question as to whether the material before her supported the existence of a genuine and subsisting parental relationship between the petitioner and the said children concluded that this was not so.  While it was accepted, at paragraph 32 that relocating the children to Zimbabwe might cause some disruption to their present education, no evidence, it was said, had been adduced which would indicate that it would be unduly harsh for them to do so should their mother decide that this course of action was in the best interests of her children.  The respondent also found at paragraph 34 that:

“You have not provided any evidence to demonstrate that it would be unduly harsh for your client’s children and his claimed child to remain in the United Kingdom without him.  The children have had the care of their mother since their births, your client’s imprisonment, during his release into the community, and his subsequent detention and their mother is still able to care for them in the United Kingdom.  It is noted that none of the children is dependent on him for their right to remain in the United Kingdom.”

 

The best interests of the children were then considered by the respondent at paragraphs 35 to 40.  Having considered the material placed before her, the respondent concluded at paragraph 39:

“Therefore, having considered all available information it is not accepted that your client meet (sic) the requirements of the exception to deportation on the basis of family life of the child.”

 

The next heading in the decision letter is “Family life with a partner”.  Under this heading, at paragraphs 41 to 47 the respondent, under reference to paragraph 399(b) of the Immigration Rules and, in particular to the exception contained therein, the respondent concluded there was no evidence to indicate that the petitioner and Ms Moore have a genuine and subsisting relationship, and in particular, that there was no evidence that they have co‑habited together at any point during any relationship they claimed to have had.  It was furthermore noted, that in previous submissions:

“Your client did not rely on his relationship with Ms Moore and he made no claims to having a partner in the United Kingdom with whom he had children.  You have also stated that your client’s relationship ended in 2012.”

 

In her reasons the respondent also concluded that it was not accepted that the petitioner’s claimed relationship with Ms Moore was formed when he was in the United Kingdom lawfully but when his immigration status was precarious.

[12]      Under the heading “Private life” the respondent proceeded to consider the private life exception set out in paragraph 399A of the Immigration Rules.  This exception applies where:

“The foreign criminal has been lawfully resident in the UK for most of his life, and

 

(b)  the foreign criminal is socially and culturally integrated in the UK, and

 

(c)  there would be very significant obstacles to the foreign criminal’s integration into the country to which he is proposed to be deported.”

 

The respondent, with detailed reasons concluded that this exception did not apply to the petitioner’s case.

            In paragraph 52 the respondent stated that:

“As the exceptions to deportation do not apply to your client, consideration has been given to whether there are very compelling circumstances such that he should not be deported.  There is significant public interest in deporting him for the following reasons.”

 

At paragraphs 53 to 61 the respondent set out, in detail, the petitioner’s history and in particular his criminal conduct in this country.  At paragraph 62 to 67 the respondent considered a particular aspect of the petitioner’s claim which related to the child Morgan’s medical educational needs.  Having carefully considered the position in that respect she concluded that this did not amount to a very compelling factor in this case which outweighed the significant public interest in deporting the petitioner.

[13]      At paragraph 68 to 69 under the heading “Article 8 conclusion” the respondent stated:

“68.  Therefore, having considered all available information about your client’s circumstances including the best interests of his children, it is considered that his deportation would not breach the United Kingdom’s obligations under ECHR article 8 because the public interest in deporting him outweighs your client’s right to private life and family life.

 

69.  The Secretary of State has considered the best interests of his children in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009, and is satisfied that this decision is in line with the duties set out therein.”

 

It should be noted that, before this court the actual reasoning and treatment of the material set out in the discussion in the aforementioned paragraph was not, in my judgment, in any significant way undermined by anything said on the petitioner’s behalf and, in particular, senior counsel for the petitioner accepted the averments of the respondent in answer 6 to the petition in relation to the lack of evidence in support of the various aspects of the petitioner’s case.

            At paragraph 70 of the decision letter the respondent wrote:

“Careful consideration has been given as to whether your client’s situation engages any other articles of the ECHR.  There has been no claims made to this effect, and there is nothing to suggest your client’s rights under any other article of the ECHR would have been breached by his removal from the United Kingdom.”

 

The respondent then, under reference to the case of Mehmet (R) v SSHD [2011] EWHC 741 (Admin) and section 32(6) of the UK Borders Act 2007, concluded that at the time the deportation order was made the petitioner’s circumstances disclosed no reason why he should be excluded from consideration for deportation under section 32(5) of the Borders Act 2007 by virtue of any of the exceptions set out in section 33 of that Act.  At paragraphs 76 to 77 the respondent stated:

“In order to protect the wider interests and the rights of the public it is vital to act in the interests of the prevention of crime and disorder.  In pursuit of that aim and having weighed up your client’s interests, it is believed that any interference with his family or private life would be legitimate, necessary and proportionate and in accordance with the law, and that his removal from the United Kingdom would not cause a breach of his rights to family or private life.  In particular, it is not considered that his is a case where removal would result in a flagrant denial of his right to respect for his family or private life.

 

Your submissions have been fully considered, but we are satisfied that following consideration of the claims made, in accordance with section 32(6) of the UK Borders Act 2007 (as set out above) there is no basis to justify the revocation of your client’s Deportation Order.  Deportation remains a proportionate response in this case.”

 

The respondent then at paragraphs 78 to 80 sets out that part of her decision which is attacked in these proceedings.

[14]      Senior counsel for the petitioner accepted, at the outset of his submissions, that the three statutory criteria set out in section 96(1) of the 2002 Act were met in this case.  The complaint, on behalf of the petitioner, as previously noted, was that the respondent had not gone a further stage, by asking herself whether or not, notwithstanding that the statutory criteria were met, she should exercise her discretion, having regard to all the relevant circumstances, by allowing an appeal to be brought.  It was important, in this connection to keep in mind that but for section 96 certification, the appellant would have had a right of appeal.

[15]      It appears to me that the primary decision I have to reach is whether or not, on reading the decision letter as a whole, I am satisfied that the respondent has failed to carry out the fourth stage of the decision making process, that is whether, having reached the view that certification otherwise falls to be made, she has considered, in the exercise of her discretion, whether, or not, having regard to all material and relevant factors placed before her, the petitioner should have the right to appeal.  If I am to find against the respondent in that respect there is still a further question to be addressed, namely, whether or not any error on the respondent’s part, in that respect, was material.  If it was inevitable that the respondent would have reached the conclusion that certification should proceed, even after having indulged in a proper exercise of her discretion, then the error would be immaterial and the present petition would fail.

[16]      As regards the first question, as previously noted, it was accepted on both sides of bar that I should follow the decision of Stadlen J in R (on the application of J).  It was not even suggested that that decision, in respect of the point with which I am concerned, required to be significantly modified in any respect.

[17]      It has to be recognised that, in the present case, the decision letter to which the proceedings relate was a response to a letter for those acting for the petitioner, which was treated as containing a further human rights claim to revoke the deportation order in relation to the petitioner - 6/1 of process.  The decision letter, in its bulk, addresses the merits of any such claim to revoke the deportation order.  Prima facie, at least, only three paragraphs in the letter, namely paragraphs 78 to 80, address specifically the question of certification.  I have come to the conclusion that, notwithstanding the submission made to the contrary by counsel for the respondent, that it cannot readily be said that those paragraphs 78 to 80 contain within them, any real hint that the respondent was, at that stage of matters, addressing the fourth stage of the decision making process, as desiderated by Stadlen J in the passage cited above.  While the preceding numbered paragraphs 78 to 80, in my opinion, carefully and fully addressed the question of whether there was ground for revoking the deportation order in the view of the respondent, that is not the issue and the question has to be whether the right of appeal against any such decision should be precluded by virtue of the certification process.  I am of the opinion that, at least in the circumstances of this case, it is not legitimate to look at the very full considerations set out in the passages directed as to whether there was, in the judgment of the respondent, a case for revocation of the deportation order and to determine that these can be said to form an implied basis for this court being satisfied that the fourth stage of the certification process, the exercise of discretion, had in fact been carried out.  Such an argument was, in my judgment, correctly rejected by His Honour Judge Pelling QC in Mahmood v Secretary of State for the Home Department [2014] EWHC 259 (Admin) at paragraph 34.  After having approved of the approach adopted by Stadlen J his Lordship at paragraph 27 noted that the respondent’s own policy guidance was in these terms:

“The High Court case of R v J [2009] EWHC 705 (Admin) found that there was a fourth stage to the consideration that must be taken when certifying under section 96 … Decision makers should also consider whether, having regard to all relevant factors it is appropriate to exercise discretion in favour of certification.  The decision letter should reflect that consideration has taken place and that it has been decided that it is appropriate to exercise discretion where a certificate is issued.  Factors to be considered include the prospects of a successor’s appeal (sic) for the underlining claim, and, in particular where the asylum and article 3 issues are raised, the reason why the claim was not advanced to the original appeal and the impact of that explanation on the credibility of the fresh claim.  The fact that an applicant may have lied previously should be taken into account but it is not necessarily determinative of the issue.”

 

In paragraph 31 his Lordship continued:

“In my judgment before this case could be certified the decision maker would have to explain with reasons why discretion was to be exercised in favour of certification, notwithstanding the evidence to which reference was made on page 2 of the decision letter.”

 

His Lordship, further in paragraphs 33 to 34 concluded:

“33.  The final point that I need to address is a submission made on behalf of the defendant that I could safely conclude that the relevant exercise required by Stadlen J, as the fourth stage, had been undertaken, notwithstanding that it was not expressly identified as having been undertaken in the Decision Letter by reference to a consideration of whether or not permission should be given outside the Immigration Rules which is set out on page 6 and following of the letter.

34.  The question which was being addressed there was not the question of whether or not there should certification, for certification had not, at any rate expressly, been considered down to this point in the letter.  What these paragraphs addressed is whether or not it was appropriate to allow the claimant to remain in the UK exceptionally outside the rules, having in context rejected the claim to remain on an partnership basis by reference to appendix FM of the Immigration Rules.  It came immediately following an acknowledgment of the effect of the Upper Tribunal’s decision in MF and following from an acknowledgement that when considering whether the case was clearly unfounded, it was necessary to consider the more general article 8 test identified in cases such as Razgar and Huang.  That reasoning was not referable to the decision to certify under section 96, which it will be remembered is not certification on the basis that the claim was clearly unfounded but a certification based upon late notification.”

 

His Lordship continued at paragraph 35 as follows:

“As far as I can see the first expressed mentioned of certification under section 96 comes after this passage in the Decision Letter and starts at page 7 of the eight page Decision Letter.  As I have explained already in this judgment, the decision maker simply rehearses the provisions within section 96(1) and concludes that it was appropriate to certify, without making any mention, much less attempting to apply, the four stages identified by Stadlen J.”

 

It appears to me that those last remarks can be applied to the position in the present case as I have endeavored to explain above.

[18]      The decision of Stadlen J has been followed and applied in some subsequent Scottish cases.  Though it is not binding on me, as I have previously noted, I was not invited by either side of the bar to hold that it was in any material respect wrong.  In H v Secretary of State for the Home Department 2012 SLT 1003, Temporary Judge Beckett QC at paragraphs 57 to 59 was to the following effect:

“(57)  Counsel for the respondent did not dispute that before certifying under s96, the Secretary of State requires to apply the four stage test explained in the case of J and that the fourth stage of that test involved the exercise of a discretion as to whether to certify or not.  The effect of certification was of course to deny a right of appeal against the Secretary of State’s decision.  For that reason it ought to be exercised carefully, with anxious scrutiny in the context of a human rights claim.  What will be required by way of reasons for a decision to certify will vary according to the circumstances of the particular case.  There may be some cases where there is not much to consider and very little explanation may be required, although at least some acknowledgment that the decision maker had discretion, and exercised it, may be advisable.  In other cases a rather fuller explanation may be required to demonstrate that discretion was exercised properly.

 

(58)  In this case, the new material which had not been articulated in response to the ’One-Stop Notice’ related to claims about the threat posed to the petitioner by her uncle in Nigeria.  That could be seen in paras 17-20 of the decision letter which I have quoted at para 9 above.

 

(59)  In this case the effect of certification was to prevent the petitioner from appealing any aspect of her claim.  The claim includes an art. 8 argument focused on the best interests of the petitioner’s three children who were born in this country and one of whom is disabled.  In those circumstances, it might be thought that there would be a clear explanation of why certification was being made.”

 

I would respectfully agree with the approach to matters rehearsed in those passages.  While there may be a danger in taking an over‑formalistic attitude to such matters, by focusing on the form of the decision maker’s expression of his decision, rather than looking at the substance of the decision taken as a whole, so that, for example the absence of the words “in the exercise of my discretion” or an expressed reference to the fourth stage of the decision making process might be regarded automatically as bad in law, I do consider that it is necessary for the decision maker to set out material, however brief, in the particular circumstances of the specific case, which can clearly satisfy the informed reader that the fourth stage of the exercise has both been identified and that that stage has, in fact, been gone through.  On this point I prefer the reasoning of the court in H to that of Lord Stewart at para 24 K v Secretary of State for the Home Department 2014 SLT 587.

[19]      In the result, therefore, I found myself in the same position as the court in Mahmood as set out in paragraph 35 of the court’s decision cited above.  Accordingly I consider the decision maker wrongly failed to carry out the legal requirements in certifying under section 96.

[20]      I require, however, to consider whether or not this conclusion entitles the petitioner to the remedy of reduction of the decision which he seeks here.  Unlike the court in Mahmood I have come to the clear conclusion that I can be satisfied, on the material before me, that had the fourth stage of the decision making process been identified, and applied, in this case the same outcome would have inevitably followed.  I accept the submission, made on behalf of the petitioner, that a court should be slow to reach such a conclusion in particular in an article 8 case.  I was referred, in this connection, to the decision in Ganesabalan v Secretary of State for the Home Department [2014] EWCH (admin) 2712 at paras 37, 40 and 43.  As pointed out by the court, in that case, at paras 37 and 39, the question for the court is whether or not the outcome would have been the same had the decision maker addressed the question of discretion so that the error in failing to do so cannot be regarded as having been material.  In urging me not to reach such a conclusion in the present case, senior counsel for the petitioner referred also to Khan v Secretary of State for Home Department [2015] CSIH 29, Zovumbas v Secretary of State for the Home Department [2014] SC (UKSC) 75, Peart v Secretary of State for the Home Department [2012] EWCA civ 568, Mirza v Secretary of State for the Home Department [2015] CSIH 28, and K v Secretary of State for the Home Department [2015] SLT 244.

[21]      The present case, as has been seen, involves the petitioner seeking the revocation of a validly subsisting deportation order, issued after his conviction for serious criminal conduct.  The petitioner has been convicted of offences for which he has been sentenced to a period of imprisonment of less than 4 years but at least 12 months.  Accordingly in terms of paragraph 398 of the Immigration Rules the public interest requires his deportation unless an exception to deportation applies.  The respondent considered carefully the material before her to support the possible existence of such an exception, I do not intend to rehearse, again, what is set out fully in the decision letter in that respect.  Suffice to say that I have been unable to detect any feature in that material which would have precluded the respondent, had she carried out the fourth stage of the process properly, from reaching the conclusion that certification was appropriate.  The petitioner’s case was not simply as it was put in discussion before me an “unpromising” one.  It is such that, in my judgment, it would have been inevitable that had the discretion been properly addressed by the respondent, it would have exercised against him.  In assessing the proportionality of deportation, little weight should be given to a private life established by a person when he has a precarious immigration status or is in the United Kingdom unlawfully, - see the 2002 Act section 117B(4) and (5).  As was set out in the respondent’s answers to the petitioner’s case:

“There is a clear and constant line of ECtHR jurisprudence that when a person’s family or private life is established when his immigration status is precarious, his removal will be disproportionate only in exceptional cases:  R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720.  In approaching the question of whether removal is a proportionate interference with a person’s rights under article 8 ECHR, the scales are heavily weighted in favour of deportation and something very compelling (which will be ‘exceptional’) is required to outweigh the public interest in removal:  MF (Nigera) v Secretary of State for the Home Department [2014] 1 WLR 544 11.”

 

[22]      I have been unable to identify any very compelling or exceptional factor relied upon by the petitioner, having regard to the whole circumstances of the case, which would have led the respondent, in an exercise of her discretion, to consider that, notwithstanding the requirements of section 96 having been met, certification was inappropriate (a)  the nature and extent of the petitioner’s offending about which there were, apparently, no mitigating factors, (b)  the position adopted by the petitioner before the tribunal hearing in 2004, in contrast with the position he now adopts regarding his nationality, (c)  the previous failure by the petitioner to disclose, at an earlier stage, the material he now relies upon, (a relevant factor to be considered in the exercise of the discretion, though not conclusive in itself, as recognised by the court at paragraph 31 in the decision of Mahmood), (d)  the absence of any material, and appropriate, evidence proffered, or offered, in support of his article 8 case (in this connection I should repeat that senior counsel for the petitioner, at the outset of his submissions, accepted that what the respondent avers in answer 6 in that respect could not be gainsaid), (e)  the petitioner’s immigration history were all, taken together with the lack of any realistic prospect of success in any appeal, factors which would have led the respondent, had she exercised her discretion, inevitably to the conclusion that certification still required to be made and that no exceptional circumstances could be identified to outweigh that conclusion.  Put another way, nothing placed before the respondent, on behalf of the petitioner, would appear to me to raise any real possibility that the circumstances relied upon by the petitioner outweighed the very significant public interest in deporting him, such as would justify the exercise of the discretion in his favour.  For the foregoing reasons I, therefore, dismiss the petition.