Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 158

 

P270/15

OPINION OF LORD KINCLAVEN

In the petition of

JSS (AP)

Petitioner;

for

Judicial Review of a decision by the Secretary of State for the Home Department to certify the petitioner’s claim to remain in the United Kingdom on asylum and human rights grounds as clearly unfounded in terms of section 94(3) of the Nationality, Immigration and Asylum Act 2002 and to remove the petitioner from the United Kingdom

Respondent:

Petitioner:  McGuire;  Drummond Miller LLP

Respondent:  Pirie;  Office of the Advocate General

8 November 2016

Introduction and Overview
[1]        This is a petition for judicial review of a decision by the Secretary of State for the Home Department (“the SSHD”) to certify the petitioner’s claim to remain in the United Kingdom on asylum and human rights grounds as clearly unfounded in terms of section 94(3) of the Nationality, Immigration and Asylum Act 2002 and to remove the petitioner from the United Kingdom.

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

[3]        Mr McGuire appeared for the petitioner.  He invited me to sustain the petitioner’s first plea‑in‑law;  to repel the second and third pleas‑in‑law for the respondent;  to find that the certification of the petitioner’s claim was unlawful;  and to reduce the decision of the respondent.

[4]        Mr Pirie appeared for the respondent.  He invited me to sustain the second and third pleas‑in‑law for the respondent;  to repel the petitioner’s pleas‑in‑law and to refuse the orders sought in the petition.  He contended that the decision was not vitiated by any material error in law.  Further, the petitioner had not been substantially prejudiced by any failure to give adequate reasons.

[5]        Having considered the submission of both parties, and the documents produced, I have reached the conclusion (for the reasons outlined below) that the respondent’s submissions are well founded.

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

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

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

 

The productions
[9]        The productions for the petitioner were:

• 6/1 Screening Interview dated 1 July 2014
• 6/2 Asylum Interview Record dated 12 November 2014
• 6/3 Decision Letter dated 10 December 2014
• 6/4 Pre-action Protocol Letter dated 31 December 2014
• 6/5 Notice of Immigration Decision dated 5 January 2015
• 6/6 Letter from Home Office dated 7 January 2015

[10]      The productions for the respondents were:

• 7/1 Appendix FM
• 7/2 Immigration Rule 276DE

 

Authorities
[11]      At the first hearing, the authorities for the petitioner were as follows:

(i)         Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at page 349;

(ii)        R (Yogathas) v Secretary of State for the Home Department [2003] 1 AC 92 at page 934E-F;

(iii)       MD (same-sex oriented males:  risk) India CG [2014] UKUT 65 (IAC) at paragraphs 4, 12, 146, 149, 152 to 154, and 174 at sub-paragraphs c, e, and f;

(iv)      MF (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544 at paragraphs 40 to 43;

(v)       SN (South Africa) v Secretary of State for the Home Department [2014] CSIH 7 at paragraph 17;  and

(vi)      Khan v The Advocate General for Scotland [2015] CSIH 29 at paragraphs [11] and [14].

[12]      The authorities for the respondent were:

(1)        AAA, Petr [2015] CSOH 37 at paragraphs [35] and [42];

(2)        Ashiq v Secretary of State for the Home Department [2015] CSIH 31 at paragraphs [5], [23], and [24];

(3)        BM v Secretary of State for the Home Department 2011 SC 726 at paragraphs [20] and [27];

(4)        Huang v Secretary of State for the Home Department [2007] 2 AC 167 at paragraphs 16, 18, 19, and 20;

(5)        King v East Ayrshire Council 1998 SC 182;

(6)        MD (same-sex orientated males:  risk) India CG [2014] UKUT 65 (IAC)

(7)        MN (Somalia) v Secretary of State for the Home Department [2014] 1 WLR 2064;

(8)        MS v Secretary of State for the Home Department [2013] CSIH 52 at paragraphs [5], [7], [18], [27], [28], [30], [32] to [34], and [37];

(9)        R (Agyarko) v Secretary of State for the Home Department [2015] EWCA Civ 440 at paragraph 28;

(10)      R (EM (Eritrea)) v Secretary of State for the Home Department [2014] 1 AC 1321 at paragraphs 5, and 6;

(11)      SS (Congo) v Secretary of State for the Home Department [2015] EWCA Civ 387 paragraphs 2, 15 to 17, and 29; 

(12)      South Bucks District Council v Porter (No. 2) [2004] WLR 1953 at paragraph 36;  and

(13)      TA (Turkey), Petr [2013] CSOH 122 at paragraph [40].

[13]      There was also reference to:

(a)        AH (Sudan) v Secretary of State for the Home Department [2008] 1 AC 678;

(b)        Hovarth v Secretary of State for the Home Department [2001] 1 AC 489;  and

(c)        MF (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544;

[14]      In the subsequent written submissions parties referred to inter alia:

• Butt, Petitioner [2015]CSIH 72; and
• Muhammad Irfan Khan, Petitioner [2015] CSIH 29.

 

The Petitioner’s position

The background to the petition
[15]      The petitioner is Mr JSS.  He lives in Scotland.  The respondent is the Advocate General for Scotland, on behalf of the Secretary of State. 

[16]      In a letter of 10 December 2014 which was sent to and received by the petitioner’s agents by fax on 23 December 2014 (“the Decision”) the respondent refused the petitioner’s asylum and human rights claims and certified those claims as being clearly unfounded in terms of section 94(3) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).  On 5 January 2015 the respondent issued a Notice of Immigration decision informing the petitioner that he was liable to be removed from the United Kingdom.  In a “pre-action protocol” letter of 31 December 2014, the petitioner’s agents informed the respondent that they had instructions to raise judicial review proceedings against the certification of the petitioner’s claims.  That by letter of 7 January 2015 the respondent informed the petitioner’s agent that it would not depart from the Decision.

[17]      The petitioner seeks reduction of the Decision to certify the petitioner’s claims under section 94(3) of the Nationality, Immigration and Asylum Act 2002.

 

The facts upon which the petitioner relied
[18]      The petitioner relied on the information contained in his “screening interview” of 1 July 2014 and his “asylum interview record” of 12 November 2014 both of which are lodged in process. 

[19]      The petitioner is a national of India who arrived in the United Kingdom for the first time on 30 August 2009 on a student visa valid until 11 October 2010. 

[20]      The petitioner made an application for further leave to remain in the United Kingdom which was refused on 9 November 2010.

[21]      The petitioner’s family continue to reside in India.

[22]      Around December 2010 the petitioner entered into a sexual relationship with Mr MSA (Mr A”), who had himself recently arrived in the United Kingdom from India. 

[23]      The petitioner continues in his relationship with Mr A.

[24]      That prior to commencing his relationship with Mr A, the petitioner did not realise that he was interested in males in a sexual way.

[25]      The petitioner’s parents have a friend, Mr Paramjeet Singh, who lives in the same city in Scotland.  The petitioner’s father and Mr Singh had ‘agreed’ that the petitioner should be married to Mr Singh’s daughter, Ms Harveen Kaur.

[26]      On or around 13 April 2014 the petitioner informed Ms Kaur that he could not marry her because he was homosexual.  Ms Kaur informed her parents of this.  Ms Kaur’s parents then informed the petitioner’s father that he (the petitioner) was homosexual.

[27]      On discovering the news of his son’s sexuality, the petitioner’s father telephoned the petitioner and shouted and swore at him.  The petitioner confessed to his father that he was homosexual.  The petitioner then informed Mr A of the situation and he (Mr A) became very worried and upset because he believed that the petitioner’s parents would inform his own parents of his sexuality.  

[28]      Mr A has made his own application to remain in the United Kingdom on asylum and human rights grounds.  

[29]      Mr A’s parents are now aware of their son’s relationship with the petitioner.  

 

The legal basis of the petitioner’s claim
[30]      The petitioner outlined the legal basis of his claim along the following line.

[31]      Section 94 of the 2002 Act (as amended) provides, so far as relevant: 

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

protection claim

 

(1)        The Secretary of State may certify a protection claim or human rights claim as clearly unfounded.  … 

 

(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 (emphasis added).

 

(4)        Those States (include) -  ….  (y) India.”

 

[32]      Section 92 of the 2002 Act provides, so far as relevant:

 

“92  Place from which an appeal may be brought or continued

 

(1)        This section applied to determine the place from which an appeal under section 82(1) may be brought or continued.

 

(2)        In the case of an appeal under section 82(1)(a) (protection claim appeal), the appeal must be brought from outside the United Kingdom if –

(a)        the claim to which the appeal relates has been certified under section 94(1) or (7) (claim clearly unfounded or removal to safe third country), or

(b)        paragraph 5(3)(a), 10(3), 15(3) or 19(b) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (removal of asylum seeker to safe third country) applies.

Otherwise, the appeal must be brought from within the United Kingdom.

 

(3)        In the case of an appeal under section 82(1)(b) (human rights claim appeal) where the claim to which the appeal relates was made while the appellant was in the United Kingdom, the appeal must be brought from outside the United Kingdom if—

(a)        the claim to which the appeal relates has been certified under section 94(1) or (7) (claim clearly unfounded or removal to safe third country) or section 94B (certification of human rights claims made by persons liable to deportation), or

(b)        paragraph 5(3)(b) or (4), 10(4), 15(4) or 19(c) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (removal of an asylum seeker to safe third country) applies.

Otherwise, the appeal must be brought from within the United Kingdom.”

 

[33]      The Secretary of State can certify a claim as being clearly unfounded under section 94(3) of the 2002 if the applicant is entitled to reside in a county listed in section 94(4) of the Act unless the Secretary of State is satisfied that the claim is not clearly unfounded.  This requires the Secretary of State to consider in every case before certifying a claim under section 94(3) of the 2002 Act whether or not that claim is clearly unfounded.  

[34]      The test for deciding whether or not a claim is clearly unfounded is if the claim is so clearly without substance it is bound to fail, see R (Yogathas) v Secretary of State for the Home Department [2003] 1 AC 920.  In determining whether or not the Secretary of State has satisfied this test, this Court is required to exercise anxious scrutiny as regards the reasons and decision of the Secretary of State.

[35]      The application of the test was explained by the Inner House of the Court of Session in the case of SN (South Africa) v Secretary of State for the Home Department [2014] CSIH 7as follows:

“The statutory test for certification in terms of section 94(2) of the 2002 Act is whether the petitioner’s claim or claims “is or are clearly unfounded”.  In carrying out such certification, the respondent must apply section 94(3) of the 2002 Act.  We consider that it may lead to confusion to attempt to explain or replace the statutory words by other wording where there may be different shades of meaning in the different formulations.  In attempting to explain the statutory test, the Lord Ordinary used a number of different expressions including reference in paragraph 14 of his opinion to a claim which “must have some realistic prospect of success”.  He then concluded “to state that the prospects of success must be realistic is to say no more than that a judge properly applying his mind to the appeal under section 82(1) would be properly entitled to uphold the claim”.  We consider that this does cause some confusion and we refer to the discussion in ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLT 348.  The majority decision was to the effect that the “clearly unfounded” test is more generous to the applicant than the “realistic prospects of success” test.  That latter test which is very familiar to the courts in considering fresh claims under rule 353 of the Immigration Rules is commonly referred to as a very low threshold test.  In our opinion the statutory test in section 94(2) of the 2002 Act referring to claims which are “clearly unfounded” is an even lower test which is more generous to an applicant.  We accept that there is some confusion in the discussion in the Lord Ordinary’s opinion of the test to be applied and that this arose because the Lord Ordinary was trying to deal with various formulations advanced to him.  We wish to emphasise the importance of the statutory language and the problems of attempting to reformulate the language.  ...It was not in dispute that at the assessment stage for the purposes of section 94 of the 2002 Act, the statement in evidence presented by an applicant to is to be assessed taking the information at its most favourable for the applicant.  If considered at a later stage by an immigration judge, findings of adverse credibility and reliability may lead to different conclusion.”

 

[36]      The respondent is obliged to give reasons for its decision to certify the claim such as to indicate to an informed reader in an intelligible way (i) why the decision to certify the claim was made and (ii) what material considerations were taken into account.  (Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345).

[37]      Against that background, the petitioner submitted that the respondent had erred in law in certifying the petitioner’s claims under section 94(3) of the 2002 Act. 

[38]      The petitioner’s submissions were essentially as follows, namely: 

(1)        That the respondent failed to apply the correct legal test in deciding whether or not to certify the petitioner’s claims.  The respondent does not refer to the correct legal test for certification in the Decision (of 10 December 2014).  The respondent failed to consider whether or not the petitioner’s claims are so clearly without foundation that they are bound to fail. 

(2)        Further, the respondent erred in law in failing to give sufficient reasons for the decision to certify the petitioner’s claims such as to indicate to an informed reader in an intelligible way (i) why the decision to certify the claim was made and (ii) what material considerations were taken into account (Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345).

(3)        In any event, the respondent erred in law in certifying the petitioner’s claims under section 94(3) of the 2002 Act.  No reasonable decision maker could conclude that the petitioner’s claim for asylum is so clearly without substance that it is bound to fail.  For the purposes of determining the petitioner’s claims the respondent accepted that the petitioner is homosexual and has been involved in a same-sex relationship in the United Kingdom.  The petitioner fears persecution on his return to India on the basis of his sexuality.  It is arguable that the petitioner could face ill-treatment and persecution on his return to his home area in India on account of his sexuality.  Reference was made to MD (same-sex oriented males:  risk) India CG [2014] UKUT 65 (IAC).  It is further arguable that it would be unduly harsh for the petitioner to re‑locate to one of the larger cities in India in order to avoid ill treatment and persecution.

(4)        For the same reasons no reasonable decision maker could conclude that the petitioner’s claims for humanitarian protection under Article 2 and/or Article 3 of the European Convention on Human Rights (“the ECHR”) are so clearly without substance that it is bound to fail.  

(5)        Further, the respondent erred in law in applying the wrong legal test in considering whether or not the return of the petitioner to India would be a breach of his rights to private and/or family life under terms of Article 8 ECHR.  The test is whether or not it would be proportionate in terms of Article 8 for the petitioner to be removed from the United Kingdom.  Reference was made to MF (Nigeria) v Secretary of State for the Home Department [2014] 1WLR 544.  The Secretary of State failed to carry out a test based on proportionality.

(6)        Finally, and in any event, the respondent erred in certifying the petitioner’s Article 8 claim under section 94(3) of the 2002 Act.  The petitioner has established both a private life and a family life (with his same-sex partner) in the United Kingdom.  It is clearly arguable that the petitioner and his partner would be unable to continue to continue their relationship in India.  No reasonable decision maker could conclude that the petitioner’s claim under Article 8 ECHR is so clearly without substance that it is bound to fail – so submitted the petitioner.

[39]      It was not in dispute that if the decisions by the Secretary of State to certify the petitioner’s claims are set aside, the petitioner would be entitled to an “in country” appeal against the refusal of his application.  In such circumstances it would be unlawful to remove the petitioner from the United Kingdom pending his challenge to the certification of his claims.  The balance of convenience favoured the petitioner remaining in the United Kingdom.  The respondent should be prevented from removing the petitioner from the United Kingdom.  

[40]      The primary submission for the petitioner, as reflected in his first plea-in-law, was that the certification of the petitioner’s claim was unlawful and that an order of reduction should be sought. 

[41]      The petitioner did not insist on his second and third pleas‑in‑law.

 

The respondent’s position at the first hearing
[42]      The respondent averred that the petitioner appealed to the First‑tier Tribunal (‘the FTT’) against the SSHD’s decision on 9 November 2010 to give him leave to remain in the United Kingdom.  He withdrew his appeal.  He has had no leave to remain in the United Kingdom since 11 October 2010.

[43]      The SSHD assumed the information that the petitioner gave her about his circumstances in his interviews on 1 July 2014 and 12 November 2014 (“the Interviews”) to be true when she made the Decision.

[44]      The petitioner told the SSHD in the Interviews that his relationship with Mr A began in 2011 and that they started living together in 2011. 

[45]      The SSHD refused Mr A’s application on 30 December 2014.  Mr A has not had leave to remain in the United Kingdom since 15 October 2012.

[46]      Section 94(3) of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) gives the SSHD no discretion not to certify if she is not satisfied that a claim is not clearly unfounded.  

[47]      It was not disputed that this court is required to exercise anxious scrutiny when it reviews the Decision.  The cases that the petitioner cited were referred to for their terms, including R (EM (Eritrea)) v Secretary of State for the Home Department [2014] 1 AC 1321.  Anxious scrutiny refers to the need for decisions to show by their reasoning that every factor that might tell in favour of an applicant has been taken into account:  MN (Somalia) v Secretary of State for the Home Department [2014] 1 WLR 2064.

[48]      The court should not reduce a decision for want of legally adequate reasons unless it is satisfied that the person who seeks reduction has genuinely suffered substantial prejudice as a result of the inadequacy:  King v East Ayrshire Council 1998 SC 182;  BM v Secretary of State for the Home Department 2011 SC 726.

[49]      The legal test for certification of a claim under section 94(3) of the 2002 Act is whether the SSHD is “satisfied that it is not clearly unfounded”.  It may lead to confusion to attempt to explain or replace the statutory words by other wording.  That was recognised by the petitioner in his reference to the decision of the Inner House in SN (South Africa) v Secretary of State for the Home Department [2014] CSIH 7. 

[50]      In the present case the SSHD applied the correct test.  That appears from paragraphs 58 and 59 of the Decision. 

[51]      Esto the SSHD erred in law by failing to apply the correct test, her error was immaterial because (for the reasons outlined below) she was bound on the application of that test to certify the petitioner’s claim under section 94(3) of the 2002 Act.

[52]      The informed reader is aware of what the petitioner told the SSHD in the Interviews.  He is aware of the documents that the SSHD cited in the Decision.  The Decision leaves the informed reader in no real and substantial doubt that that the SSHD took account of the considerations that she discussed in paragraphs 12 to 59 when she made it.  It leaves the informed reader in no real and substantial doubt that the SSHD refused the petitioner’s claim because: 

(a)        there was no evidence of persecution due to the sexual orientation either in his description of his own experiences or in the objective data; 

(b)        the petitioner could obtain protection from the authorities against ill-treatment due to his sexual orientation;  and

(c)        the petitioner could safely and reasonably relocate to India to avoid ill‑treatment due to his sexual orientation. 

[53]      The Decision leaves the informed reader in no real and substantial doubt that the SSHD was not satisfied that the petitioner’s claim was not clearly unfounded.  On no legitimate view of the material before the SSHD could the petitioner’s claim succeed in the First Tier Tribunal.

[54]      Esto the reasons that the SSHD gave in it are legally inadequate, the Decision should not be reduced because the petitioner has not suffered substantial prejudice as a result:  answer AAA, Petitioner [2015] CSOH 37.

[55]      For the purposes of determining the petitioner’s claims the SSHD accepted that the petitioner is homosexual and has been involved in a same‑sex relationship in the United Kingdom.  However in MD (same‑sex orientated males:  risk (India) CG [2014] UKUT 65 (IAC) the Upper Tribunal gave country guidance on the risk to homosexual males returned to India.  The guidance included: 

(a)        that the prevalence of such incidents is not such that there can be said in general to be a real risk of an openly homosexual man suffering treatment that is persecutory or contrary to Article 3 ECHR;  and

(b)        that it would not, in general, be unreasonable or unduly harsh for a homosexual man, who is able to demonstrate a real risk in his home area because of his particular circumstances, to relocate internally to a major city in India. 

[56]      That guidance is based in part on its findings: 

(a)        that there is no central registration system in India that would enable the police to check the whereabouts of inhabitants in their own or another state;  and

(b)        that the possibility of the police or any other person being able to locate a person who has fled to another state in India at the behest of the person’s family is remote. 

[57]      In the Interviews, the petitioner: 

(a)        did not tell the SSHD that he had suffered ill-treatment in India due to his sexuality;

(b)        told the SSHD that he could not safely relocate in India because his mother’s uncle is a policeman and therefore could find out where he was;  and

(c)        did not give the SSHD any reasons why if he could safely relocate to India it would be unreasonable / unduly harsh for him to have to do so. 

[58]      The First Tier tribunal is bound to apply the guidance that the Upper Tribunal gave in MD (same-sex orientated males:  risk) India CG.  On no legitimate view of the material before the SSHD could the petitioner’s claim succeed in the First Tier Tribunal:  Hovarth v Secretary of State for the Home Department [2008] 1 AC 678.

[59]      It is not incompatible with rights under Article 8 of the ECHR for a person who does not meet the requirements of the Immigration Rules to be removed from the United Kingdom unless removal would have unjustifiably harsh consequences for the person such that it would be disproportionate:  MS v Secretary of State for the Home Department [2013] CSIH 52.  Consequences are not unjustifiably harsh if they are taken into account in the application of the Immigration Rules or if they are common features in cases in which leave to remain is refused:  MS;  TA (Turkey), Petr [2013] CSOH 122;  AAA, Petr [2015] CSOH 37.  The SSHD and the First Tier Tribunal are not required to consider whether removal would have unjustifiably harsh consequences unless a person presents a good arguable case that it would:  MS;  Ndagijimana, Petr [2014] CSOH 142.  The Immigration Rules provide for when a person should not be removed from the United Kingdom because he has as private life here:  Paragraph 276DE.  They provide for when a person should not be removed from the United Kingdom because he has a family life here:  Appendix FM. 

[60]      The SSHD found in paragraphs 49 to 53 of the Decision that the petitioner does not meet the requirements of the Immigration Rules.  She found in paragraph 54 of the Decision that:

“It is not considered there are any exceptional circumstances in your case that would lead to any unduly harsh consequences such as would render removal disproportionate under Article 8”. 

 

[61]      On the hypothesis that what the petitioner said in the Interviews was true: 

(a)        the petitioner’s relationship with Mr A developed when the immigration status of each was precarious; 

(b)        the petitioner’s private life in the United Kingdom developed when the petitioner’s immigration status was precarious; 

(c)        the petitioner has lived in India for all but around five years of his life;

(d)       the petitioner has family in India with whom he has been in contact since they found out about his homosexuality;  and

(e)        the petitioner speaks Punjabi, Hindi and English. 

[62]      The petitioner put no material before the SSHD that is not taken into account in the application of the Immigration Rules.  The petitioner put no material before the SSHD to suggest that his case has any features that are not common in cases in which applications for leave to remain are refused.  It would not be an interference with the petitioner’s right to respect for his family life if he and Mr A were removed to India.  The material that the petitioner put before the SSHD does not amount to a good arguable case that his removal for the United Kingdom would have unjustifiably harsh consequences such that it would be disproportionate:  c.f.  Huang v Secretary of State for the Home Department [2007] 2 AC 167;  R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin);  MF (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544;  AAA, Petr [2015] CSOH 37. 

[63]      Directing herself correctly in law, the SSHD was bound to find that it would not be incompatible with the petitioner’s rights under Article 8 ECHR for the petitioner to be removed from the United Kingdom, and to certify that finding under section 94(3) of the 2002 Act.  Esto the SSHD erred in law in the way that the petitioner avers, her error was immaterial.

[64]      For the reasons set out above (even on the hypotheses advanced by the petitioner) on no legitimate view of the material before the SSHD could the First-tier Tribunal find that it would be incompatible with his rights under Article 8 ECHR for the petitioner to be removed from the United Kingdom.

[65]      The primary submission for the respondent, as reflected in the second plea-in-law, was that the Decision was not vitiated by any material error of law and that the order sought by the petitioner should be refused.

[66]      Esto the SSHD erred in law by failing to give adequate reasons for the Decision, the petitioner has not been substantially prejudiced by the failure, and the orders sought by the petitioner should be refused – so submitted the respondent.

[67]      When setting out his numbered legal propositions during the first hearing counsel for the respondent highlighted in particular the following authorities namely:  MS v Secretary of State for the Home Department [2013] CSIH 52 at paragraphs [21], [26], [32], [33] and [34];  Huang v Secretary of State for the Home Department [2007] 2 AC 167 at paragraphs 18 and  20;  SS (Congo) v Secretary of State for the Home Department [2015] EWCA Civ 387 at paragraphs 16, 17 and 29;  TA (Turkey), Petr [2013] CSOH 122 at paragraph 40;  R (Agyarko) v Secretary of State for the Home Department [2015] EWCA Civ 440 at paragraph 28;  and Ashiq v Secretary of State for the Home Department [2015] CSIH 31 at paragraph [24].

 

Subsequent written submissions for the respondent
[68]      After the first hearing both parties lodged further written submissions.  They did not wish an opportunity to make further oral submissions.

[69]      The respondent’s oral submissions had included the following contentions: 

 

(1)        that the test the Secretary of State for the Home Department (“SSHD”) had to apply in making the decision under review was whether “on any legitimate view” of the evidence before her, the petitioner could succeed in an appeal to the First‑tier Tribunal (“FTT”); 

(2)        that to apply that test, the SSHD was required to direct herself in law as the FTT would if it was directing itself correctly in law; 

(3)        that, directing itself correctly in law, the FTT would be bound to apply the authorities (highlighted in paragraph [67] above) in considering whether it is proportionate for the purposes of Article 8 ECHR to remove from the United Kingdom a person (such as the petitioner) who does not meet the requirements of the Immigration Rules for leave to remain;  and

(4)        that the SSHD was bound to find that on no legitimate view of the evidence before her could the petitioner succeed in an appeal to the FTT against his removal on the ground of its incompatibility with Article 8 ECHR.

[70]      One of the respondent’s main propositions was that there is no disproportionality when (using the language of the cases) the factors relied on:  “are fully taken into account in the application of the immigration rules”;  are a “very common feature of cases where removal is ordered”;  are “typical” rather that “in any way unusual” consequences;  or “inevitably follow in every case in which a claimant invokes the existence and nature of relationships in support of his Article 8 claim”. 

[71]      Another central proposition for the respondent was that where the factors relied on do not fall within that proposition (outlined in the preceding paragraph) and family life was developed when a person had a precarious immigration status, the very great weight must be given to absence of exceptional circumstances. 

[72]      The written submissions referred to Butt, Petr [2015] CSIH 72.  That was a petition for judicial review of a decision by the SSHD that the petitioner’s application for leave based on Article 8 ECHR did not amount to a “fresh claim” within the meaning of that phrase in paragraph 353 of the Immigration Rules.  That provision is quoted in paragraph 33 of Butt.  In Butt, Lady Paton agreed (in paragraph 10) with the opinion of Lady Smith.

[73]      The respondent submitted that Lady Smith’s opinion supported the respondent’s propositions.  It was based on the requirement (recorded in Huang v Secretary of State for the Home Department [2007] 2 AC 167 at paragraph 18) on the FTT and SSHD to follow the clear and constant jurisprudence in MF (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544 at paragraph 42, SS (Congo) v Secretary of State for the Home Department [2015] EWCA Civ 387 at paragraph 29 and R (Agyarko) v Secretary of State for the Home Department [2015] EWCA Civ 440 at paragraph 28. 

[74]      In Butt, Lady Smith reviewed that jurisprudence and stated that where a relationship is formed when an applicant’s “presence in this country was illegal and thus in circumstances of known precariousness”, it is “perhaps, inevitable that any circumstance which is sufficiently weighty to tip the proportionality balance in favour of such an applicant will be exceptional in character”:  paragraphs 18 and 45.  Hence the SSHD “would not be required or expected or expected to give significant weight to... a relationship where it was formed at a time when... the ability to pursue family life in the UK was, from the outset, precarious”:  paragraphs 31 – 33.

[75]      The respondent also submitted that, applying those propositions, the SSHD was bound to find that the petitioner could not on any legitimate view of the evidence succeed in an appeal to the FTT on Article 8 ECHR grounds.  In particular:

(i)         Lady Smith stated that the Immigration Rules “have woven within them regard not only to the Article 8 rights of an applicant but also those of an applicant’s spouse”:  paragraph 28.  Hence the factors on which the petitioner relies are “fully taken into account in the application of the immigration rules” for the purposes of the proposition set out in paragraph above.

(ii)        The respondent cited the discussion in Huang v Secretary of State for the Home Department [2007] 2 AC 167 at paragraph 16 of “certain general considerations” telling in favour of the proportionality “to bear in mind”.  Lady Smith stated that the SSHD “was not just entitled but duty bound” to have regard to those considerations:  paragraph 45.

[76]      In short, the respondent submitted that the decision in Butt, Petr supported the respondent’s position.  The petitioner strongly disagreed.

 

Subsequent written submissions for the petitioner
[77]      In his written submissions the petitioner argued that Lady Smith’s opinion in Butt, Petr did not support the proposition advanced on behalf of the respondent in paragraph [71] above. 

[78]      At the first hearing it had been submitted on behalf of the petitioner that the proposition (in paragraph [71]) was not a valid proposition because it was tantamount to introducing a test of “exceptional circumstances by the back door” in the types of cases to which it purportedly applied (that is Article 8 cases outside the immigration rules where family or private life was developed where a person had a precarious immigration status).  [79]    The petitioner contended that the legal position was set out succinctly and accurately in the opinion of Lord Eassie in the decision of the Extra Division in the case of Muhammad Irfan Khan, Petr [2015] CSIH 29, viz: -

“[11]    …  we are not able to accept the proposition advanced by counsel for the Advocate General that in any case in which at the time of contracting marriage the immigration status of one of the parties was precarious (seemingly to any extent) then some “exceptional circumstance” must be found before any question of an infringement of Article 8 ECHR may arise (emphasis added).  As we understood him, counsel sought to base his proposition on the final sentence of a passage within paragraph 39 of the judgment of the European Court of Human Rights – ‘ECtHR’ – in Rodrigues da Silva, Hoogkamer v The Netherlands (2007) 44 EHRR 34:

 

‘... Art 8 does not entail a general obligation for a State to respect immigrants’ choice of the country of their residence and to authorise family reunion in its territory.  Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest.  Factors to be taken account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious.  The Court has previously held that that where this case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Art.8.’

 

“On our reading of that passage and on our understanding of the function of the ECtHR as a court charged with interpreting the Convention and not with edicting rules of law, the relevant sentence is simply a repetition of an earlier comment by the court as to the likely operation of the Convention provision.  As is plain from a   reading of the passage as a whole, whether an interference with private and family life may be justified by the State as proportionate to a legitimate aim depends upon an evaluation of the whole circumstances of the case.  What is given by way of example is not to be elevated into a legal condition.  It may also be noted, that as counsel for the petitioner pointed out, in its actual decision in Rodrigues da Silva – which involved “precarious” immigration status – the ECtHR found a breach of Article 8 to have occurred without identifying any “exceptional circumstance” or stating that the circumstances were exceptional.  In these circumstances we consider that counsel for the petitioner was well founded in his submission that one simply could not say that anyone properly carrying out the proportionality assessment required by Article 8 ECHR in this case would inevitably conclude that the interference with private family life of both the petitioner and his wife was proportionate.”

 

[80]      It was noteworthy that Lord Eassie, who also issued an opinion in Butt, Petr, did not resile in any way in Butt, Petr from his position in Muhammad Irfan Khan, Petr. 

[81]      To the extent that it might be said that a difference of approach to the assessment of Article 8 cases outside the immigration rules is exhibited by those two decisions, the decision in Muhammad Irfan Khan, Petr should be followed.

[82]      The petitioner submitted that Lady Smith’s opinion in Butt, Petr did not support the proposition that the respondent was bound to find that the petitioner could not succeed on any legitimate view of the evidence on an appeal to the First‑tier Tribunal (Immigration and Asylum Chamber) on Article 8 ECHR grounds. 

[83]      In the present case, the petitioner submitted that the respondent had applied a test of “exceptional circumstances” to the petitioner’s Article 8 claim and had thus failed to address properly whether or not it would be proportionate to remove the petitioner from the UK (see No 6/3 of process at paragraphs 51, 53 and 54).  That failure cannot be remedied by an assertion that if the “proper” test has been carried out, the petitioner could not succeed.

[84]      The petitioner further submitted that it is important to recognise that Butt, Petr is not a case concerning the “certification” of an asylum or human rights claim by Secretary of State.  The challenge in the present petition is against the certification of the petitioner’s claims.  Butt, Petr is of little assistance in assessing, for example, whether or not the respondent applied the correct legal test to certification in the present petition.”

 

Discussion
[85]      The principal question for determination is whether or not the respondent erred in law certifying the petitioner’s claims under section 94(3), Nationality, Immigration and Asylum Act 2002. 

[86]      Section 94(3) provides that:

 

“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 (emphasis added).”

 

[87]      I have borne in mind the statutory language and the importance of not attempting to reformulate that language.  I have given anxious consideration to the detailed submissions of parties (including those relating to threat to kill) and the various authorities highlighted above and I have proceeded on the basis that what the petitioner told the SSHD was true. 

[88]      Having done so, and bearing in mind the terms of the decision under challenge (No. 6/3 of Process), I have reached the following four main conclusions.

• Firstly, the respondent applied the correct legal test under section 94(3) of the 2002 Act in certifying the petitioner’s claims for protection on asylum grounds and under the ECHR;
• Secondly, the respondent gave adequate reasons for the decision;
• Thirdly, the respondent’s decision was not outwith the range of reasonable decisions open to the SSHD;  and
• Fourthly, the respondent applied the correct test for a breach of Article 8 ECHR.

[89]      In short, the decision under challenge (No 6/3 of Process) was not unlawful.  The orders sought by the petitioner will be refused.

[90]      In the present case the SSHD applied the correct test.  That appears from paragraphs 58 and 59 of the Decision. 

[91]      The decision leaves the informed reader in no real and substantial doubt that that the SSHD took account of the considerations that she discussed in paragraphs 12 to 59 when she made it. 

[92]      In any event, if (contrary to my findings) the decision was unlawful for either of the first or fourth reasons, I would have refused to reduce the decision because the alleged error on the part of the respondent was not sufficiently material.

[93]      Further, if (contrary to my findings) the decision was unlawful because of the alleged inadequacy of reasons, I would have refused to reduce the decision because the petitioner has not suffered substantial prejudice as a result of such inadequacy.

[94]      In general terms, subject to the comments below, I agree with the submissions made on behalf of the respondent.

[95]      In relation to the competing submissions in relation to the cases of Butt, Petr and Khan, Petr it appears, at first sight, difficult to reconcile the passages quoted.  I can see some force in the petitioner’s written submission, but it goes too far to suggest that the respondent in the present case been “introducing a test of exceptional circumstances by the back door”. 

[96]      I agree that the respondent’s position is supported by Lady Smith in the passages from Butt, Petr already quoted above.

[97]      In any event, as Lord Eassie stated in Khan, Petr (supra) it is plain that “whether an interference with private and family life may be justified by the State as proportionate to a legitimate aim depends upon an evaluation of the whole circumstances of the case”. 

[98]      In the present case, the SSHD found in paragraphs 49 to 53 of the Decision that the petitioner does not meet the requirements of the Immigration Rules.  She found in paragraph 54 of the Decision that:

“It is not considered there are any exceptional circumstances in your case that would lead to any unduly harsh consequences such as would render removal disproportionate under Article 8”. 

 

[99]      I accept that the respondent has evaluated the whole circumstances in this case and that she was entitled to note an absence of exceptional circumstances.

[100]    In the whole circumstances, I have reached the conclusion that the respondent’s submissions, so far as material, are well founded.

[101]    The decision under challenge was not vitiated by any material error. 

 

Decision
[102]    Accordingly, for the reasons outlined above, I shall sustain the respondent’s second and third pleas‑in‑law, repel the petitioner’s pleas‑in‑law and refuse the orders sought in the petition.

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