Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 38

 

P1017/15

OPINION OF JUDGE J BECKETT QC

In the Petition of

SN (AP), NN and SZN (AP)

Petitioners;

for

Judicial Review of decisions of the Secretary of State for the Home Department

 dated 15 May 2015

 

Petitioners:  Forrest; Drummond Miller LLP

Respondent:  MacIver; Office of the Solicitor to the Advocate General

8 March 2016

Introduction
[1]        In this petition for judicial review, the petitioners, citizens of South Africa, seek reduction of a decision of the Secretary of State for the Home Department dated 15 May 2015 to refuse their application for leave to remain in the United Kingdom and reduction of her decision to certify as clearly unfounded a claim that removal from the UK would disproportionately interfere with their rights under article 8 of the European Convention on Human Rights and Fundamental Freedoms. 

The facts of the case
[2]        The first petitioner SN was born in 1984, the second petitioner SZN in 1980 and their child NN in June 2013.

[3]        The first petitioner was granted Entry Clearance as a working holiday maker on 27 April 2006 until 27 April 2008 and entered the UK on 4 May 2006.  The second petitioner was granted Entry Clearance as a working holiday maker for the period 1 May 2005 to 1 May 2007.  An application by her for leave to remain was refused on 6 June 2007.  On 31 July 2007 she was informed by letter that she had no right to remain in the UK and should make plans to depart and that her passport would be forwarded to the port of departure only after she had made firm plans to depart the UK.  Both were issued with an IS151A Notice (notice of liability to removal) on 19 August 2013.  The letter of 15 May 2015 in which the decision to refuse leave to remain was intimated is no. 6/1 of process.

 

The petition

[4]        The following averments are made in the petition at para 5:

“5.2  In September 2006, both petitioners decided to apply to extend their visas to remain in the UK.  They consulted an immigration advisor in London in November 2006.  He was called Mohammed Salim.  He practiced from offices at Bloomsbury House, 26 Bloomsbury Street London.  Both petitioners travelled to meet him there.  They completed forms which they understood to be applications for indefinite leave to remain in the UK.  Between them they paid Salim over £3000.

 

5.3  In 2007 the second petitioner received through the post a document which purported to be a Residence card entitling her to indefinite leave to remain in the UK.  The first petitioner received a similar document in 2008.  Both petitioners assumed that these documents had been sent from and issued by the respondent and entitled them to remain in the UK.  They continued with and developed courses of study and careers in the UK accordingly.

 

5.4  Both petitioners wanted to have a child.  They had difficulties in this respect so contacted the Human Fertilisation and Embryology Authority (“HFEA”).  The second petitioner’s eggs were frozen and stored in a clinic in London.  SZN was born [in] June 2013 as a result of fertilisation of one of the second petitioner’s eggs.

 

5.5  In July 2013, it came to light that neither of the documents the petitioners received were genuine.  Both the petitioners tried to contact Salim, but he could not be found.  The petitioners consulted their present solicitors who tried to track him down through the Law Society, the Solicitors Regulatory Body and the Immigration Services Commissioner.  No one had any knowledge of him.

 

5.6  In September 2013, the petitioners submitted to the respondent an application for leave to remain in the UK, explaining that they had been deceived into thinking that they were legitimately present in the UK between 2008 to 2013.”

 

Mr Forrest confirmed that the petitioners had not reported the matter to the police.

[5]        In para 7.1 of the petition it is averred that against that background it was irrational for the respondent to conclude that removal was not disproportionate.  In para 7.2 it is averred that it will not be possible for the first and second petitioner to add to their family if they are not allowed leave to remain which is said to be an unjustifiably harsh consequence such that the respondent erred in law in failing so to recognise.

 

The decision letter of 15 May 2015 (No. 6/1 of process)

[6]        In the case of each of the petitioners there is an analysis of the immigration history and an assessment against the Immigration Rules between pages 2 and 6 and no issue was taken with those decisions.

[7]        On pages 7 and 8 the respondent’s consideration of whether the petitioners’ situation amounted to exceptional circumstances which, in the light of article 8, might warrant a grant of leave to remain outside the rules is set out.  At the foot of page 8 the decision to certify under section 94(1) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) is explained.

[8]        At page 7, the content of article 8 is noted and it is confirmed that account was taken of the respondent’s obligations in relation to the welfare of children under section 55 of the Borders, Citizenship and Immigration Act 2009.  It is noted that the family would be returning to a unit and could be expected to be able to support the child in South Africa where there is a functioning education system.  At the top of page 8 it is stated that such disruption as there might be to the petitioners’ private life was considered to be proportionate to the legitimate aim of maintaining effective immigration control.  Mr Forrest did not take issue with the respondent’s approach thus far.

[9]        At page 8 it is stated:

“Your representatives have also stated on your behalf that you were ‘duped’ by your previous solicitor Salim Mohammed who you claim took payment for your application and provided you with a false indefinite leave stamp.  They further claim that you should not be punished for these actions.  However, it should be noted that it is the responsibility of the applicant to secure the services of a competent immigration solicitor as it is their responsibility to ensure that they are aware of the leave which is being applied for.  It is unclear as to what basis you believed that you were entitled to indefinite leave to remain in 2007 when you had resided in the United Kingdom for at most1 years and 7 months at the end of 2007 and your partner had resided here for at most 2 years and 7 months.  This is particularly the case as your partner’s application for leave to remain had been refused on the 6 June 2007 as she was out of time and was from then on in the UK illegally and had been sent a letter on the 31 July 2007 making her aware that she had no right to remain in the UK, should make plans to depart the UK and that her passport would be forwarded to the port of departure only after she had made firm plans to depart the UK.”

 

It is stated that this was not considered a sufficiently compelling situation to issue leave to remain outside the Immigration Rules.

[10]      The letter then narrates an assertion on the petitioners’ behalf that the child has a right to apply to HFEA for information and to meet his biological father which they feel they cannot deny him and that his and their future would be jeopardised if they cannot extend their family as the second petitioner’s eggs are frozen and stored in the London sperm bank.  In response it is stated:

“However, any application to the HFEA can be made from South Africa and if there is the possibility of your child meeting their father, then an application for leave to enter as a visitor can be made.  It is also assumed that any such process would also involve a period of indirect communication prior to meeting.  Further to this, it is noted that your child was born due to the presence of a sperm donor and there has been no mention of a deficiency in your partner with regard to ovulating.  Even if this were not the situation, it is again open to you to apply for leave to enter the United Kingdom for private medical treatment.

 

It has therefore been decided that there are no exceptional circumstances in your case and a refusal to grant leave outside the rules would not result in unjustifiably harsh consequences for you and your family.  Consequently your application does not fall for a grant of leave outside the rules.”

 

[11]      In the final three paragraphs of page 8, the respondent explained that the case was being viewed as one where the Secretary of State was required to conclude that the claim was clearly unfounded before certifying.  Certification was then made under explanation that the claim did not succeed under the Immigration Rules and no other circumstances had been raised which were to be considered exceptional so that it was concluded that the application for leave to remain was clearly without substance and could not succeed on any legitimate view.  Finally it was explained that the effect of this is that the petitioners cannot appeal whilst still in the United Kingdom.  Parties were in agreement that the petitioners could competently appeal once removed to South Africa.

The legal background on which parties agreed
[12]      With reference to the opinion of  Mr Justice Sales in R (on the application of Nagre) v Secretary of State for the Home Department [2013] EWHC 720 parties were in agreement that the respondent’s guidance on exceptional circumstances was lawful and gave clear and appropriate guidance to her officials.  I was referred to the following extract quoted in Nagre.

“3.2.7d Exceptional circumstances

Where the applicant does not meet the requirements of the rules refusal of the application will normally be appropriate.  However, leave can be granted outside the rules where exceptional circumstances apply.  Consideration of exceptional circumstances applies to applications for leave to remain and leave to enter.  ‘Exceptional’ does not mean ‘unusual’ or ‘unique’.  Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional.  For example, a case is not exceptional just because the criteria set out in EX.1 of Appendix FM have been missed by a small margin.  Instead, ‘exceptional’ means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate.  That is likely to be the case only very rarely.

 

In determining whether there are exceptional circumstances, the decision maker must consider all relevant factors, such as:

 

(a)  The circumstances around the applicant's entry to the UK and the proportion of the time they have been in the UK legally as opposed to illegally.  Did they form their relationship with their partner at a time when they had no immigration status or this was precarious?  Family life which involves the application putting down roots in the UK in the full knowledge that their stay here is unlawful or precarious, should be given less weight, when balanced against the factors weighing in favour of removal, than family life formed by a person lawfully present in the UK.

 

(b)  Cumulative factors should be considered.  For example, where the applicant has family members in the UK but their family life does not provide a basis for stay and they have a significant private life in the UK.  Although under the rules family life and private life are considered separately, when considering whether there are exceptional circumstances private and family life can be taken into account.

 

If the applicant falls to be granted because exceptional circumstances apply in their case, they may be granted leave outside the rules for a period of 30 months and on a 10 year route to settlement.”

 

[13]      With reference to the opinion of the court given by Lady Smith in Ashiq v Secretary of State for the Home Department 2015 SC 602 at paras 5 and 6, Mr Forrest accepted that whilst the decision-maker needed to show that the application had been considered by reference to the Immigration Rules and also by reference to article 8, it need not be done in any particular way.  It was a matter of substance and not form.  There would be no need to conduct a separate examination under article 8 if the relevant issues had already been addressed in the consideration under the Rules.  The court also considered that here was no intermediary test involving the decision-maker deciding whether the application included a “good arguable case,” all that was necessary was for it to be evident from the terms of the application that an article 8 issue arose.

[14]      Section 94 of the 2002 Act contains the following:

“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)] 4 unless satisfied that it is not clearly unfounded.

(4)  Those States are—

… (w) South Africa…”

 

Submissions for the petitioner

[15]      Mr Forrest expanded on the history explaining that the petitioners were not sure if their advisor had or had not been a solicitor although they thought that he was.  They thought that leave to remain had been granted genuinely and laboured under that misapprehension for a number of years.  After their true situation came to light, their inquiries directed to finding Mr Salim came to nought. In the meantime the petitioners gave birth to their child in June 2013 following IVF treatment.  They sought leave to remain which was refused.

[16]      In this case, the respondent had erred by failing to consider proportionality, the balancing exercise which was required in terms of article 8 itself and as it had been interpreted by the House of Lords in R (Razgar) v Secretary of State for the Home Department 2004 2 AC 368.

[17]      The petitioners should not be viewed as people who had built up family and private life whilst having a precarious immigration status, they were people who believed that they had leave to remain.  That factor, and the length of time for which the petitioners had been in the UK should be taken account of in the assessment of proportionality.  The respondent had erred in viewing the petitioners as having sufficient knowledge that they should be held responsible for Mr Salim’s failings.  On the facts accepted by the respondent, that part of the second petitioner’s body is kept in the UK, it could not be a reasonable conclusion to suggest that she and her husband could leave and return.  After difficulties in conceiving, family life had been established in a particular way and developed over a period of years during which the petitioners thought that they were legitimately present in the UK.  In these circumstances, it was unreasonable to conclude that it would not be unduly harsh for the petitioners to be refused leave to remain.

[18]      Counsel referred to the opinion of Lord Bingham in R (Yogathas) v Secretary of State for the Home Department [2003] 1 AC 920 at para 14 to the effect that the Secretary of State would only be entitled to certify where she could be “reasonably and conscientiously satisfied that the allegation must clearly fail.”  That conclusion was not reasonably open to the respondent in this case and the decision to certify should be reduced.

 

Submissions for the respondent

[19]      Mr Maciver commenced his reply by submitting that the court should be clear that it was exercising a traditional judicial review function, it was not making a decision on the merits.  In support of that contention he referred me to Lord Bannatyne’s analysis, in S v Secretary of State for the Home Department 2015 SLT 651, of the opinions given in the House of Lords in ZT(Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348.  Lord Bannatyne had concluded:

“[37]    Accordingly four out of the five judges accepted that there could be circumstances where reasonable decision makers might reasonably differ as to whether the case was clearly unfounded and three of their Lordships did not confine their said views to the single circumstance of where there was a dispute as to primary fact.

 

[38]      I am satisfied that on a proper reading of ZT (Kosovo) there is a practical consequence in the answer to the question of what is the role of the court.  I am persuaded that on a proper reading of this decision the majority view of the House of Lords was that, even in circumstances where the primary facts were not in dispute, there may be situations where the court might hold a claim not clearly unfounded but nevertheless hold that the Secretary of State could properly hold that the claim was clearly unfounded.”

 

[20]      Mr Maciver observed that since the terms of section 94(3) and (4) of the 2002 Act reversed the onus regarding certification of those entitled to reside in certain countries including South Africa, the respondent had taken an over-generous approach to the certification issue, but he was content that the court should review the decision on the basis on which it had been made.

[21]      In R (L and another) v Secretary of State for the Home Department [2003] 1WLR 1230, Lord Phillips of Worth Matravers in giving the opinion of the Court of Appeal had stated, at para 58, in relation to certification under section 115(1) of the 2002 Act,

“If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded.  If that point is reached, the decision-maker cannot conclude otherwise.”

 

Accordingly, the use of such terminology (in the passage which I have summarised at para [11] above) demonstrated that the respondent had the correct test in mind.  The real target of the petitioner’s decision-making was the refusal of leave to remain and there was little specification of the grounds on which the certification decision was considered to be irrational.

[22]      Counsel referred to the opinion of the Inner House in MS v Secretary of State for the Home Department [2013] CSIH 52 where, at para 30, it was concluded that application of the Immigration Rules relating to article 8 claims would in most cases, of itself, ensure that a proportionality assessment is properly carried out.

[23]      The petitioners’ averments that they could not add to their family if required to leave the UK were evidently overstated.  As the respondent had observed, there would be nothing to stop the petitioners visiting the UK to have further treatment involving the stored eggs.

[24]      Counsel went further and submitted that the desire to add to one’s family could never give rise to an article 8 claim, suggesting that the decision in R. (on the application of Erimako) v Secretary of State for the Home Department provided vouching for his proposition.  That case had been noticed by Lord McEwan in RL v Secretary of State for the Home Department [2015] CSOH 145.

[25]      It followed from the reasoning of the Court of Appeal in GS (India) v Secretary of State for the Home Department [2015] 1 WLR 3312, particularly per Laws LJ at paras 86-87, that medical treatment is only relevant when it contributes to an article 8 claim already made, there is no separate obligation on the UK to provide medical treatment.  Since in the case of the petitioners they would be removed to South Africa together, there is no separate article 8 claim to which medical treatment can be seen to contribute.

[26]      In the passage from the decision letter quoted at para [9] above, there was no error in the treatment of the effect of erroneous or bogus legal advice.  This was an immigration claim, and not an asylum claim, and the special circumstances identified in FP (Iran) v Secretary of State for the Home Department [2007] INLR 224 are not relevant.  The petitioners had no reason to expect to be granted leave to remain at the time when they say they consulted Mr Salim as they ought to have known.  In any event, they had suffered no real prejudice even if everything which they assert about that is accepted.  They had lived here from 2007-2013 and their family life will continue, simply in another country.

[27]      On the certification issue, the court should bear in mind that it only deprived the petitioners a right to appeal from within the UK, they still had entitlement to appeal from South Africa following removal.

 

Decision

[28]      I note what was said by the Inner House at para 30 of MS.

“30  In summary, therefore, we are of opinion that in all cases where the right to private and family life under article 8 is invoked the first stage must be to consider the application of the Immigration Rules.  The new rules are designed to cover the considerations that are relevant to an article 8 claim in a normal case.  The fundamental issue raised by article 8 is an assessment of on one hand the requirements of an effective immigration policy, including the enforcement of that policy by removal from the United Kingdom, and on the other hand the right of the individual concerned to private or family life.  That exercise involves an assessment of proportionality.  In most cases, the new rules will ensure that assessment is properly carried out.”

 

[29]      In this case, the petitioners made no complaint about the assessment of their claim under the Rules.  When it came to the decision on exceptional circumstances, at the top of page 8 there is a reference to disruption to private life being considered to be proportionate, as I have noted in para [8] above.  In the conclusion of consideration of the family life aspect of the claim outside the rules, it is said that refusal of leave outside the rules would not result in unjustifiably harsh consequences for the first petitioner and his family.  I consider that the use of the phrase “unjustifiably harsh consequences” should be seen in context.  It is taken from a passage in the respondent’s guidance which I have quoted more fully above:

“Instead, ‘exceptional’ means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate.”

 

[30]      The use of that phrase clearly signals a consideration of proportionality as was recognised by the Inner House in Ashiq at para 24.  In allowing the Secretary of State’s reclaiming motion, the court observed in relation to the immigration decision under consideration that, “the extent to which his and her family life would or might be disrupted would not make removal unduly harsh and would not be disproportionate.”

[31]      For these reasons I do not consider that there is any basis for concluding that the respondent in her decision of 15 May 2015 failed to consider the question of proportionality in determining the article 8 claim outside the Rules.

[32]      Whilst I do not consider that the decision in Erimako carries the implication suggested by Mr Maciver, because it resolves the issue on grounds of proportionality, even if the propositions put forward by the petitioners in relation to their child and their desire to add to their family are considered as aspects of family life (which is how they were treated by the respondent), they can only be of limited weight.  Quite how limited is their weight is demonstrated in the first of the two paragraphs which I quote from the decision letter at para [10] above.  The respondent was entitled to conclude that they were substantially outweighed by the requirement for effective immigration control which can readily be recognised as a necessary measure in pursuit of several of the justifications found in article 8.2.

[33]      I accept the respondent’s submissions noted in para [26] above and I can detect no material error in the respondent’s consideration of the contentions about the first and second petitioners being duped by Mr Salim.

[34]      Mr Forrest did not identify any separate argument in relation to certification beyond his assertion that the substantive decision was irrational and accordingly the claim should not have been certified.

[35]      On the approach taken by the respondent, she was entitled to conclude that the claim was unfounded and so to certify.  The only error she made, that accepted by counsel for the respondent as I have noted in para [20] above, was one favourable to the petitioners.  She would have been no less entitled to certify had she recognised that, given petitioners’ entitlement to reside in South Africa, she was required by statute to certify unless satisfied that the claim was not clearly unfounded.

[36]      For all of these reasons, I do not consider that the respondent reached decisions which no reasonable decision maker could have reached or that she materially erred in law in reaching them.

[37]      I shall therefore repel the plea in law for the petitioner and sustain the plea in law for the respondent and refuse the petition.  I reserve in the meantime the question of expenses. 

 

 

2 March 2016