Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 139

 

P1378/15

OPINION OF LORD BECKETT

In the petition of

VALENTYA YAKOVLEVA (AP)

Petitioner;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

Petitioner:  Caskie;  Drummond Miller LLP

Respondent:  Tariq;  Office of the Advocate General

4 October 2016

Introduction
[1]        In this petition for judicial review, the petitioner Valentya Yakovleva, a citizen of Ukraine, seeks reduction of a decision of the Secretary of State for the Home Department (SSHD) dated 14 October 2015.  Having refused the petitioner’s application for leave to remain, the SSHD certified that the claim was clearly unfounded which precluded an in country appeal to the First Tier Tribunal.  It is the decision to certify which the petitioner seeks to reduce. 

 

The facts of the case
[2]        The petitioner is a widow aged 66.  Her only daughter, her son-in-law and her two grandchildren live in central Scotland and the petitioner has been visiting them regularly since 2001.  On 7 July 2010 she entered the UK on a visitor’s visa valid until 1 January 2011 but she has not left again.  Her application of 30 December 2010 for leave to remain on compassionate grounds was refused.  Her human rights claim of 7 March 2014 was refused on 29 April 2014 with no right of appeal.  On 18 September 2015 she was served with a notice requiring her to state any additional grounds she relied on to remain in the UK and her response was met with the decision of 14 October 2015. 

 

The petition
[3]        The petition narrates an acceptance of the decision relating to family life under the Immigration Rules.  In paragraph 9, it is averred that the SSHD left out of account the fact that the petitioner had spent significant amounts of time in the UK between 2007 and 2010.  In paragraph 10, the petitioner avers that the SSHD left relevant considerations out of account in reaching a decision on private life under the Immigration Rules, particularly by failing to recognise the difficulty which the petitioner is likely to have in gaining entry clearance in future.  

[4]        In paragraph 11 the petitioner attacks the SSHD’s assessment outwith the Immigration Rules of the implications of Article 8 of the European Convention of Human Rights.  It is averred that the SSHD failed: 

i) to assess whether the petitioner had family life with her daughter, son-in-law and grandchildren and whether “that relationship of dependency” amounts to family life;

ii) to assess the petitioner’s private life in the UK;

iii) to consider the nature and extent of the relationships and fails to indicate what weight they were given in assessing proportionality;

iv) to take account of the petitioner’s health problems;

v)  to state whether the weight given to be accorded to immigration control was diminished by the period of time over which the petitioner had been able to remain in the UK without the SSHD taking action against her.

vi)  The SSHD had left out of account the best interests of the petitioner’s grandchildren.

[5]        In paragraph 12, it is averred that a failure to provide reasons in respect of the considerations outlined in the preceding paragraph betrayed a failure to apply anxious scrutiny.  It is then averred that the SSHD operated a dysfunctional immigration system as demonstrated by the petitioner’s detention in December 2015 when the petitioner had been in the UK for 5 years.

 

The decision letter of 14 October 2015, No 6/1 of process
[6]        At page 1 the petitioner’s immigration history is summarised and it is noted that she had leave to enter and did enter the UK between: July 2001 and January 2002;  July 2003 and January 2004;  September 2004 and March 2005;  August 2005 and February 2006;  August 2006 and August 2007.  

[7]        At paragraph 7 it was explained that the application was considered on the basis of the petitioner’s family and private life under Appendix FM and paras 276ADE (1) – CE of the Immigration Rules.  At paragraph 9 it was explained that the petitioner did not meet the family life criteria under the Rules because she did not have a partner or any dependent children under the age of 18 in the UK.  

[8]        Consideration was given to the private life aspect of the petitioner’s claim under the Immigration Rules and particularly against Rule 276ADE 1(vi), which would deem an applicant to qualify under the private life rules if there would be very significant obstacles to their integration into the country to which they would have to go if required to leave the UK.  It was noted in paragraph 12 that the petitioner was 65 and has lived in the UK since 7 July 2010.

[9]        The reasons why the petitioner was deemed not to qualify under that Rule are given in paragraph 16:

“It is not accepted that there would be very significant obstacles to your

integration into Ukraine, if you were required to leave the United Kingdom. 

It is considered that you spent three years in Ukraine living alone before coming to the UK and therefore you are able to lead the same life upon return.  You have provided no evidence to suggest that you would not be able to support yourself in Ukraine and it is further considered that your daughter and son-in-law could provide the same support to you in Ukraine as they currently do in the UK.  It is considered that your relationships with your grandchildren, your daughter and son-in-law could all be continued from abroad through modern forms of communication and that it would also be open to you to make the appropriate entry clearance applications as you have done in the past.”

 

[10]      Paragraphs 19 - 23 state:      

“Exceptional Circumstances

 

19. It has also been considered whether your application raises any exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules.

 

20. You have provided a document dated 18 September 2015 which addresses the water infrastructure damage in Eastern Ukraine. The article does not include any reference to Kharkiv being affected by these problems and instead focuses on the conflict affected areas of Donetsk and Luhansk regions. There is insufficient evidence to demonstrate how this would affect your return to Kharkiv and as such this cannot be considered as an obstacle to your return.

 

21. You have stated that you have a future fear on return to Ukraine. As this is a request for international protection your claim constitutes an Asylum application under the terms of Paragraph 327 (b) of the Immigration Rules. Any future fear you have on return to Ukraine must be made in person at Asylum Screening Unit, Lunar House, Croydon. Consequently your claimed future fear on return to Ukraine has not been considered in this decision…

 

22. It has therefore been decided that there are no exceptional circumstances in your case. Consequently your application does not fall for a grant of leave outside the Rules.

 

23. In addition your Human Rights claim is one to which section 94(3) of the Nationality, Immigration and Asylum Act 2002 applies. This requires the Secretary of State’s official to certify that the claim is clearly unfounded unless they are satisfied that it is not clearly unfounded.”

 

[11]      In paragraph 24 it is explained that the claim is considered to be clearly unfounded because the petitioner does not meet the requirements for leave to remain within the Immigration Rules on grounds of family life or private and has been certified.  It is then stated:

“…Further you have not raised any circumstances that are considered to be exceptional. In light of this and the consideration above, it is considered that your application for leave to remain on the basis of Human Rights is clearly without substance and cannot succeed on any legitimate view.

25. This means that you may not appeal whilst you are in the United Kingdom.”

 

The legal background
[12]      In the light of submissions made in the petitioner’s note of argument, referring amongst others to Singh v Secretary of State for the Home Department [2015] EWCA Civ 630 and GHB v United Kingdom [2000] EHRR 545, parties presented a joint note by counsel containing a concession on behalf of the respondent in the following terms: 

“The respondent accepts that the relationship between a parent and adult child and grandparent and grandchild can in principle engage Article [8] ECHR.”

 

The note then continues in these terms:

 

“However, the respondent will argue that the petitioner’s claim based on her family life outside of the Immigration Rules arising from these relationships has been considered in the Secretary of State’s decision. The respondent will also argue with reference to the Singh and GHB cases that these relationships attract a lesser degree of protection than claims based on family life between partners or parents and dependent and minor children.”

[13]      The Nationality, Immigration and Asylum Act 2002 (the 2002 Act), section 94 contains the following: 

“94 Appeal from within United Kingdom: unfounded human rights or protection claim

 

(3) If the Secretary of State is satisfied that a claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (1) unless satisfied that it is not clearly unfounded.

(4) Those States are—

…(x) Ukraine…”

 

[14]      Sections 117A and 117 B of the 2002 Act provide:

“117A Application of this Part

(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—

(a) breaches a person's right to respect for private and family life under Article 8, and

(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2) In considering the public interest question, the court or tribunal must (in particular) have regard—

(a) in all cases, to the considerations listed in section 117B, and

(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.

(3) In subsection (2), “the public interest question” means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).

 

117B Article 8: public interest considerations applicable in all cases

(1) The maintenance of effective immigration controls is in the public interest.

(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—

(a) are less of a burden on taxpayers, and

(b) are better able to integrate into society.

(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—

(a) are not a burden on taxpayers, and

(b) are better able to integrate into society.

(4) Little weight should be given to—

(a) a private life, or

(b) a relationship formed with a qualifying partner,

that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.

(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom.”

 

[15]      Immigration Rule 320 sets out general grounds of refusal for entry clearance and leave to enter.  Paragraph 320 (7B) provides, under an earlier heading, “Grounds on which entry clearance or leave to enter the United Kingdom is to be refused:”

“(7B) where the applicant has previously breached the UK’s immigration laws (and was 18 or over at the time of his most recent breach)by:

(a) Overstaying;…

(i) Overstayed for 90 days or less and left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State;

…

(iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago;

(iv) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 2 years ago; and the date the person left the UK was no more than 6 months after the date on which the person was given notice of liability for removal, or no more than 6 months after the date on which the person no longer had a pending appeal or administrative review; whichever is the later;

(v) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 5 years ago;

(vi) was removed or deported from the UK more than 10 years ago or;

(vii) left or was removed from the UK as a condition of a caution issued in accordance with section 22 of the Criminal Justice Act 2003 more than 5 years ago.

Where more than one breach of the UK’s immigration laws has occurred, only the breach which leads to the longest period of absence from the UK will be relevant under this paragraph.

 

…”

 

[16]      Under the heading, “Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused,” rule 320(11) states:

“(11) where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by:

 

1 (i) overstaying;  or…

 

and there are other aggravating circumstances, such as absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the re-documentation process.”

 

[17]      Immigration Rule 41 states, insofar as relevant:

 

“41. The requirements to be met by a person seeking leave to enter the United Kingdom as a general visitor are that he:

(i)         is genuinely seeking entry as a general visitor for a limited period as stated by him, not exceeding 6 months …and

(ii)        intends to leave the United Kingdom at the end of the period of the visit as stated by him; and does not intend to live for extended periods in the United Kingdom through frequent or successive visits;…”

 

[18]      The Children (Scotland) Act 1995 (the 1995 Act) provides, in section 1: 

“1.— Parental responsibilities

(1) Subject to Section 3(1)(b), and (d) and (3) of this Act, a parent has in relation to his child the responsibility—

(a) to safeguard and promote the child's health, development and welfare;

(b) to provide, in a manner appropriate to the stage of development of the child—

(i) direction;

(ii) guidance,

to the child;

(c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative,

but only in so far as compliance with this Section is practicable and in the interests of the child.

 

2.— Parental rights.

(1) Subject to Section 3(1)(b), and (d) and (3) 1 of this Act, a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right—

(a) to have the child living with him or otherwise to regulate the child's residence;

(b) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child's upbringing;

(c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative.

(2) Subject to Subsection (3) below, where two or more persons have a parental right as respects a child, each of them may exercise that right without the consent of the other or, as the case may be, of any of the others, unless any decree or deed conferring the right, or regulating its exercise, otherwise provides.

             …”

 

Submissions for the petitioner
[19]      Counsel adopted the written submissions in his note of argument and expanded on them.  The court would have to consider whether the SSHD had erred in reaching her decision to certify and, if she had, whether in any event the petitioner’s claim was clearly unfounded, meaning bound to fail.  Counsel accepted that as a citizen of Ukraine, the effect of section 94 of the 2002 Act was that the SSHD was bound to certify unless she was satisfied that the claim was not clearly unfounded. 

[20]      Counsel explained that on 8 December 2015, the petitioner had been detained from her daughter’s home in Scotland at the instigation of the SSHD before being admitted to bail shortly before Christmas.  These facts were not disputed. 

[21]      Immigration Rule 320 (7B) affected the petitioner as she had overstayed.  If she had left voluntarily at public expense she would not be permitted entry for 5 years and if she did not leave voluntarily, it would be 10 years.  Even if she went back voluntarily, and paid for her own departure, she would not be able to enter for 12 months.  Looking at her lengthy overstay, a clearance officer might under Rule 320(11) or Rule 41 simply refuse entry at any stage on the basis that she could not demonstrate that she would stay only for less than 6 months.  The decision to remove the petitioner had been taken on 16 September 2015 and the SSHD’s decision to refuse leave to remain and certify was 14 October 2015.  However on the petitioner’s detention in December 2015, the SSHD was obliged to revisit her decision of 14 October.  Part of the reasoning in No 6/1 of process, at paragraph 16, was that the petitioner would be able to apply for entry clearance as she had done in the past.  Accordingly the SSHD’s actions, detaining the petitioner, undermined a foundation of the decision of 14 October.  Alternatively, it might be said that in reaching her decision of 14 October, the SSHD left out of account the implications of Immigration Rule 320. 

[22]      The representations made on behalf of the petitioner in a letter of 28 September 2015 responding to the removal notice (No 6/3 of process) were reproduced as No 6/2 of process.  It included information about conditions in Eastern Ukraine compiled by the petitioner’s son-in- law.  He listed a number of terrorist incidents in and around Kharkiv, where the petitioner used to live, between 2012 and 2015.  The UK Foreign and Commonwealth Office had issued travel advice against all but essential travel to Kharkiv.  Attention was drawn to published material about disruption to water supplies caused during hostilities in breach of ceasefire agreements.  The ensuing water shortages had implications for central heating systems and there was particular concern about the Donetsk and Luhansk regions.  Lack of access to safe and affordable water was putting vulnerable people, including the elderly and the chronically ill, at risk in the least accessible conflict-affected areas.  Counsel explained that the point being made was that such considerations would adversely affect the petitioner’s prospects of being integrated back into Ukrainian society.  Despite this the SSHD had concluded that she would not face very significant obstacles.  Counsel accepted that the SSHD was entitled to take that view, but since a different view on that question could reasonably have been taken, the claim was not bound to fail and the SSHD ought not to have certified her decision to refuse leave to remain.   

[23]      The SSHD was not suggesting, perhaps in light of the FCO travel advice, that the petitioner’s family could be expected to travel to Ukraine to visit her in order to maintain contact, rather it was suggested that family life could be continued by modern means of communication.  Counsel referred to paragraph 16 of the judgment of Mr Justice Blake in R. (on the application of Mansoor) v Secretary of State for the Home Department [2011] EWHC 832 (Admin). In light of those observations, the family relationships in this case ought to have been assessed as a question of fact by a judge of the FTT. 

[24]      The SSHD had issued guidance on certification (produced as No 6/10 of process) to the effect that for a case to be “clearly unfounded” it cannot, on any legitimate view succeed.  It is possible for a claim to be manifestly unfounded even if it takes more than a cursory look at the evidence to conclude that it has no substance.  It notes the requirements of section 55 of the Borders, Citizenship and Immigration Act 2009 (the 2009 Act) to have regard to the need to safeguard and promote the welfare of children in the UK by ensuring that a child’s best interests are a primary consideration in any decision affecting them.  In R (EM (Eritrea)) v Secretary of State for the Home Department [2014] AC 1321, at paras 6-8, the Supreme Court had endorsed the view that in an asylum case, where certification is under consideration, the facts must be taken at their reasonable height from the claimant’s point of view.

[25]      The onus was on the SSHD to establish that her decision was proportionate.  Accordingly there should be an analysis of proportionality and an explanation why an Immigration Judge taking the facts at their highest could not reach a contrary conclusion.  Whilst paragraph 9 dealt with family life in terms of the rules, that issue still required consideration outwith the rules. 

[26]      Counsel founded on the terms of section 117B of the 2002 Act.  He acknowledged that he was not in a position to suggest that the petitioner speaks English.  The petitioner is supported by her family and so is financially independent of the state.  Her private life was established before she came to the UK and for the first 6 months when she was here after July 2010 she was here lawfully.  It may have developed whilst she had precarious immigration status, but it was not established in those circumstances.  

[27]      It could not be reasonable to expect the grandchildren to remove to Ukraine.  The 117B (6) criterion was a significant factor.  Given the terms of the Children (Scotland) Act 1995, section 2(2) which envisaged that more than two people may have parental rights, an Immigration Judge might reasonably conclude that the petitioner had a genuine and subsisting parental relationship with her grandchildren.  

[28]      An example of undue reliance being placed on the Article 8(2) justification of “the economic well-being of the country” is found in Da Silva v Netherlands (2007) 44 EHRR 34.  In that case such an approach was regarded as “excessive formalism” which should not be brought to bear on the petitioner’s case given her family life living with her granddaughters for many years. 

[29]      The SSHD had failed to recognise that an immigration judge might take the view, having regard to the reasoning and decision in EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159, that the passage of time had strengthened the petitioner’s private and family life and reduced the weight otherwise to be given to the requirements of firm immigration control.  

[30]      By treating the question of the security situation in Eastern Ukraine as only bearing on the possibility of an asylum claim, the SSHD failed to recognise the impact of this development on the petitioner’s prospects of reintegration.  It might properly be viewed as a very significant obstacle to reintegration and as such must be relevant to proportionality.  This was a matter which was left out of account, alternatively it was a matter in relation to which no adequate reasons had been given.  The conclusion in paragraph 14 of the decision letter that the claim could not succeed on any legitimate view was so unreasonable that no decision maker acting reasonably could have reached it.  Had a proper assessment carried out, that conclusion could not have been reached. 

 

Submissions for the Respondent
[31]      Whilst submissions had been made about credibility, this case is not concerned with that, it is all about proportionality.  The petitioner was bound to fail because the strong public interest in maintaining immigration control pointed to her removal where she had over-stayed for 5 years.  This was illustrated by the decision and opinion of an Extra Division in LWF v Secretary of State for the Home Department 2014 CSIH 77.  In the circumstances of that case the possibility of ongoing communication by modern means was not viewed as an irrelevant consideration. 

[32]      The type of relationship which the petitioner has with her relatives in Scotland does not carry the same weight as that between partners or between a parent and a dependent child and so her claim based on family life and private life was relatively weak.  In 2011 when the petitioner became an over-stayer one child was aged 6 and the other was aged 1.  These relationships had been substantially established whilst the petitioner was in a precarious position as an over-stayer.  

[33]      It was a fiction that the petitioner has a parental relationship with her grand-children. That suggestion was never made in No 6/2 of process.  In that letter, she claimed dependency on her daughter and son-in-law and did not claim that the children were dependent on her.  She claimed that she had developed a close relationship with the children, not a parental relationship.  It would be a strange view of the situation where the children’s parents lived with them and yet it was the grandmother who was viewed as having parental responsibilities. 

[34]      Counsel drew attention to the opinion of an Extra Division in MS v Secretary of State for the Home Department 2013 CSIH 52 where it was observed that in most cases, consideration of an Article 8 claim under the new rules will ensure that the proportionality assessment is properly carried out.  It was established in Ashiq v Secretary of State for the Home Department 2015 SC 602 that where an Article 8 claim is considered outwith the rules, there need not be a formulaic approach, it is substance which matters.  It is unnecessary to conduct a full separate examination of the facts on an application of Article 8 outside the rules if all the relevant issues have already been addressed in the consideration under the rules.  However, at paragraphs 20 and 21 of the decision letter, matters were examined which did not feature in the earlier assessment under the rules and so there was a further consideration.  There was insufficient information to demonstrate that there were very significant obstacles to reintegration. 

[35]      Removal directions were never issued in the case of the petitioner and so she never reached the point where she was liable to a lengthy ban from entering the UK.  It remains within the control of the petitioner to remove herself voluntarily, thus avoiding the risk that she will be unable to gain entry for the longer periods referred to in Rule 320 (7B).  If she had left voluntarily 12 months ago, then there would be no mandatory refusal.  In the absence of the aggravating factors referred to in Rule 320(11), the petitioner was not at risk of discretionary refusal of leave to enter.  All that was said in paragraph 16 was that it was open to the petitioner to make applications as she had done in the past.  The decision of 14 October 2015 was made at a point in time when no detention had been effected and the petitioner had not been forcibly removed.  The petitioner’s appropriate remedy, if she wished to suggest that events subsequent to the decision undermined it, was to present a fresh claim.

[36]      In the decision letter, at paragraph 12, the petitioner’s age and that she had been living here for more than 5 years was noted and in paragraph 16 it can be seen that the family relationships founded on were given consideration, even if that was a private life assessment.  These relationships should not be seen by the court as falling within the ambit of paragraph 16 of Mansoor.  Counsel also founded on Singh v The Secretary of State for the Home Department 2016 Imm AR 1 which stressed that in so far as the relationship of the petitioner and her daughter was concerned, it all depended on the facts whether Article 8 was engaged.  On the assumption that the relationship does amount to Article 8 family life, it was relatively weak.  In GHB, it was observed that the relationship between grandparents and grandchildren by its very nature generally calls for a lesser degree of protection than that between natural parents and their children.

[37]      A failure to use the words “best interests of the children” in relation to the grandchildren did not vitiate the decision as was demonstrated by the decision of Lady Clark of Calton in TMK v Secretary of State for the Home Department 2015 CSOH 105.  That case also offered an example of a petitioner with sympathetic personal circumstances finding that her Article 8 rights were outweighed by the requirement of immigration control. 

[38]      The observation in paragraph 16 that relationships could continue by modern means of communication was sufficient to show that the best interests of the children had been considered.  This was not a case where there was any question of the children being removed. 

 

Reasons and decision
[39]      I have considered carefully all of the written and oral submissions advanced for the petitioner and the respondent.  

[40]      At paragraph 37 of the petitioner’s note of argument there is reference to her having received treatment for high blood pressure being a matter bearing on the question of very significant obstacles to integration in Ukraine.  The petitioner’s health was not raised as an issue by the petitioner in No 6/2 of process, but her GP notes had been submitted to the SSHD as part of her application for leave to remain on 7 March 2014 (No 6/7 of process).  Those records do not suggest that she had any significant ongoing problem in that regard by 2013 although there was reference to her having taken medicine in Ukraine for high blood pressure when required.  This issue was not revisited during the hearing and the absence of reference to this matter in the decision of 14 October 2015 does not demonstrate a flaw in the decision.  

[41]      In considering the argument advanced with reference to EB (Kosovo) it is useful to examine the circumstances of that case.  A claim for asylum made by a boy of 13 took almost 5 years to be determined, on account of a series of failures by the Secretary of State, by which time he had turned 18 and had lost the opportunity of being granted exceptional leave to remain on that basis.  His cousin who had arrived at about the same time as him in similar circumstances was timeously granted exceptional leave to remain.  The applicant's claim had been woefully mishandled and could be shown to be the result of a dysfunctional system.  The period of delay being discussed, which had the various effects described by Lord Bingham in paragraphs 14-16 of his opinion, was delay by the SSHD in response to an application.  The petitioner’s contention is that since steps were not taken to remove her sooner, this came to be a material consideration in her favour such that absence of reference to it and EB (Kosovo) vitiates or has a part to play in vitiating the decision.  The circumstances are so different that I am not persuaded that it can be said that constitutes a factor of such importance that it required to be addressed.  I note also that this contention did not feature in No 6/2 of process. 

[42]      I have quoted section 1 and parts of section 2 of the 1995 Act at paragraph [18] above.  Counsel did not develop detailed submissions on this point and given the conclusion which I reach on the case as a whole, it has not been necessary to give this argument close examination.  The children live with their parents and the petitioner also lives with the family and has some involvement in caring for her granddaughters.  My impression is that allowing that the parental rights referred to in subsection 1 may be exercised by more than two persons, does not demonstrate that in these circumstances the petitioner must be regarded by the SSHD or an immigration judge as enjoying a parental relationship with her grandchildren.  On the argument which I heard, I am not satisfied that that is a view that an immigration judge could come to in considering section 117B (6) of the 2002 Act.  

[43]      It is not immediately clear how the decision to detain the petitioner on 8 December impugns the decision of 14 October.  The petitioner’s remedy for detention was to seek bail which she did successfully.  She has not been removed and she has not left voluntarily but at the SSHD’s expense, and so she is not in a position whereby she will necessarily be unable to return as a visitor for 5 or 10 years.  To that extent, as counsel for the SSHD contended, it remains speculative as to what extent the terms of Immigration Rule 320(7B) will inhibit the petitioner.  

[44]      However, she was given notice of the SSHD’s intention to remove her on 18 September 2015, before the decision of 14 October was taken.  That notice explained that from 7 days after the receipt of the notice, the petitioner may be removed during a period of 3 months without further notice.  Accordingly the SSHD had formed the intention to remove the petitioner.  Removal would have implications under Immigration Rule 320.  Even if the petitioner removes herself voluntarily and at her own expense, she will not be eligible for re-entry for 12 months.  Even then the terms of Immigration Rules 320(11), and particularly 41, suggest that there is no guarantee that she would be re-admitted as a visitor as she had been in the past.  As counsel for the petitioner submitted, this could be viewed as the decision maker failing to take account of a relevant consideration, the terms of the Immigration Rules as they might bear on the petitioner in the scenario proposed by the SSHD. 

[45]      The maker of the decision of 14 October 2015 ought to have been aware of the terms of the rules and their implications and probably was, because the last phrase of paragraph 16 appears to be carefully expressed.  To say that, “it would also be open to you to make the appropriate entry clearance applications as you have done in the past” is accurate, but hollow.  An ability to return to visit her family might mitigate interference with Article 8 rights, but a mere ability to make applications does not unless they are granted.  On this view, it might be said that an irrelevant consideration was taken into account.

[46]      Whether viewed in the manner discussed in paragraph [44] or [45] above, I consider this to have been an error in the making of the decision in the particular circumstances of this case. 

[47]      The other mitigating factor in relation to family relationships advanced in paragraph 16 is the ability to maintain them through modern forms of communication.  Courts have regarded this as having some value in some cases, for example LWF.  That was a case where the applicant had been in a relationship for only two years and she did not live with her boyfriend.  There was no doubt that this relationship was established at a time when the applicant’s immigration status was precarious.  The appeal court noted that there was no dependency within the relationship, “in relation to home, housing, finance, relatives, or ability to cope with day-to-day matters,” and considered that the applicant’s boyfriend was able to travel to be with her.  On the other hand, in Mansoor Blake LJ did not regard it as a meaningful way of continuing the family life enjoyed between cohabiting partners or parents/minor children.  That is not the petitioner’s situation.  However, the nature of her family relationships and the weight to be attached to her family life in particular in the proportionality assessment would require to be assessed carefully.  

[48]      Whilst I have referred to the circumstances of other cases, I have done so because I was invited to examine these cases by parties but I do not consider it to be particularly useful to try to make a simple comparison between cases given the wide variety of circumstances which can occur. 

[49]      The court in MS offers relevant guidance.  At paragraph 30, the court envisaged that whilst application of the Immigration Rules will provide an adequate proportionality assessment in most cases, where there is consideration outwith the rules:  

“That will require an assessment of the precise circumstances of the individual case, taking account of all factors that are relevant.”

 

[50]      In the petitioner’s case, her unlawful presence in the UK since January 2011, weighs heavily in the balance against her.  However, whilst it may be relatively straightforward to identify that where a couple commence a relationship or cohabitation any family life or private life is established whilst one of them is in a precarious immigration position, that exercise is less straightforward in the petitioner’s circumstances.  

[51]      She was already a mother and grandmother and in that sense, if not in an Article 8 sense, had established a family life and private life before she overstayed.  This is not quite the same as a single person choosing to enter a new relationship.  If, as counsel for the SSHD accepted the situation could be viewed, the petitioner was enjoying family life within the scope of Article 8, by October 2014, then it might be said that family life in that sense was established when she was in a precarious immigration position or it might be seen as strengthening or developing in that situation.  Her husband had died in 2007 and it is not disputed that her only family live in Scotland.  Whilst she has been here, armed conflict and acts of terrorism have erupted in Eastern Ukraine.  Whilst the situation in Kharkiv may not be so grave as to give rise to a claim for international protection, those developments are not entirely irrelevant in evaluating her prospects of maintaining family and private life from Ukraine.  The SSHD has not suggested that the petitioner’s family can travel to Kharkiv in Eastern Ukraine to visit the petitioner.  She is now 66 and it seems unlikely that she will easily find work and it seems to be accepted that she is financially dependent on her daughter who supports her.  Her daughter could no doubt continue to support her financially in Ukraine to some extent.

[52]      Accordingly, the proportionality assessment in this case requires a careful assessment of the weight to be accorded to the petitioner’s family and private life balanced against the requirements of immigration control and Article 8(2) justifications.  It is unlikely that the petitioner’s daughter, son-in-law and grandchildren will make visits to Kharkiv in the foreseeable future.  At least for 12 months, the 66 year old petitioner cannot return as a visitor and she may not be able to thereafter.  Whilst she could no doubt maintain some form of communication with her family, she has been living with her daughter, son-in-law, and granddaughters for more than 5 years.  Whilst there is no question of her grandchildren being removed and their best interests may be of limited weight in a proportionality assessment where the petitioner had overstayed for 5 years, the obligation in section 55 of the 2009 Act is not referred to in the decision letter. 

[53]      I note what was said by the court in Ashiq at paragraph 5:

“There will be no need to conduct a full separate examination of the facts on an application of Art 8 outside the Rules if all the relevant issues have already been addressed in the consideration under the Rules.”

 

I am not satisfied that this happened in the petitioner’s case.  Counsel for the SSHD accepted that the petitioner could be viewed as enjoying Article 8 family life with her daughter and granddaughters and yet there is no clear indication in No 6/1 of process that the case was decided on that assumption.  Whilst most of the factors relied on by the petitioner are referred to at one point or another in the decision letter, I cannot detect where there was any evaluation of the petitioner’s family life or full consideration of proportionality in the light of it.  Under the rules, the claim in so far as concerned with family life was refused simply because the petitioner does not have a partner or dependent children under the age of 18 in the UK.  

[54]      I recognise that consideration of a claim through the lens of private life will be much the same that of family life.  The high point for the SSHD is paragraph 16 of the decision letter, but for the reasons I have given above, I do not consider that that was a satisfactory assessment of the precise circumstances of the individual case, taking account of all factors that are relevant.  

 

Materiality
[55]      The decision to certify is inextricably linked with the view reached by the SSHD as to the merits of the claim after what I have concluded was a flawed analysis.  Whilst counsel for the SSHD argued that any error was immaterial on the basis that an appeal was bound to fail because the petitioner’s immigration history would inevitably outweigh any family or private life, I am not persuaded that it is inevitable that on a careful consideration of all of the relevant issues an immigration judge would, in the particular circumstances of this case, be bound to refuse the appeal. 

 

Disposal
[56]      Accordingly, I shall sustain the plea in law for the petitioner and reduce the SSHD’s decision of 14 October 2015 to certify the petitioner’s claim in terms of section 94 of the 2002 Act.  I shall reserve all questions of expenses.