England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Birmingham Civil Justice Centre Priory Courts, 33 Bull Street, Birmingham, B4 6DS
		7 November 2012

Mr Justice Silber :

I. Introduction

1. The Claimant seeks to quash the decision of the Secretary of State for the Home Department made on 18 April 2011("the April 2011 decision") to refuse his application for leave to remain in the United Kingdom and also to certify his human rights claims as "clearly unfounded" pursuant to the provisions of Section 94(3) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). The Secretary of State also certified the claimant's asylum claim, but that certification has not been challenged. The human rights claim, which has been certified, relates to the rights of the claimant's children under article 8 ECHR.
2. Permission to apply for judicial review was granted by Lindblom J.
3. The Claimant, who is a citizen of Nigeria and born on 25 July 1973, claims to have arrived in the United Kingdom as a visitor using a false passport provided by a Pastor in Nigeria. He has made no further applications to remain in the United Kingdom until making the application which has led to the certification under challenge.
4. In 2005, the Claimant's wife made an application for entry clearance to enter the United Kingdom, but it was refused. Nevertheless, in June 2006 the Claimant's wife arrived in the United Kingdom having entered with a visitor's VISA endorsed upon her passport containing false details that she had purchased following a previous refusal of entry clearance. She was accompanied by the Claimant's eldest child, who was her step-son Simson and who had been born on 1 November 2001.
5. On 1 December 2006, the claimant and his wife had a first daughter, Oladoyin, who was born in the United Kingdom and on 6 May 2008, they had a further daughter Olanlesi who was also born in the United Kingdom.
6. On 29 December 2010, the Claimant was arrested for assault after a report made to the police by his wife. He was also arrested on suspicion of being an illegal immigrant to the United Kingdom and he was served with a Notice to a Person Liable for Removal. The claimant then made a claim for asylum.
7. The Claimant's wife was served with a similar Notice to a Person Liable for Removal and she also made a claim for asylum. On 1 April 2011, the asylum and human rights claims made by the Claimant's wife was refused and her asylum and human rights claims were certified as clearly unfounded under Section 94(2) and (3) of the 2002 Act. She sought to judicially review that decision, but permission to pursue it was refused on a paper application and she has not sought to renew her application for permission. Her rights to challenge that decision are now exhausted; so she is liable to removal.
8. In the April 2011 decision the Defendant certified the Claimant's asylum and human rights claims as clearly unfounded. It is the certification of the human rights claim as clearly unfounded that is being challenged in this application.
9. On 26 May 2011, the Claimant sent a Pre-Action Protocol letter to the Secretary of State's Judicial Review Unit. On 21 June 2011, a supplementary letter ("the June 2011 letter") was served by the Defendant upon the Claimant's solicitors responding to the matters raised in the Pre-Action Protocol, but the Secretary of State maintained her decision of 18 April 2011 and the present judicial review claim was then instituted on 15 July 2011.
10. On 8 November 2011, a declaration was signed by the Claimant in which he confirmed that he had sole care of Simson Akinrogbe but that he had neither contact with the mother of his children nor knowledge of her whereabouts. On 12 October 2011, a declaration was signed by the wife of the Claimant confirming that she had the sole care of Oladoyin Akinrogbe and Olanlesi Akinrogbe, but that she had no contact with the Claimant and no knowledge of his whereabouts.
11. Following the grant of permission to claim Judicial Review on 6 December 2011, the Secretary of State served a further letter ("the December 2011 letter") reconsidering the issues that had been raised and in particular the best interests of each of the children as identified by the Supreme Court in ZH (Tanzania) v Secretary of State [2011] 2 AC 166. The letter noted that the Claimant's wife and two youngest children were liable to removal to Nigeria as they had not challenged the decision to refuse the claim for asylum and to certify the claim as clearly unfounded.
12. The letter concluded by stating that after having given consideration to the ruling of the Supreme Court in ZH (Tanzania), and the best interests of the Claimant's children in accordance with Section 55 of the Border Citizenship and Immigration Act 2009 ("the 2009 Act"), it concluded that the removal of the Claimant and his son was appropriate, in all the circumstances.

II. The Issues

13. The Claimant's case is that the Secretary of State:-

a) misunderstood how she should have had regard to the best interests of the children in that she failed to appreciate the significance of the decision of the Supreme Court in ZH and, in particular, whether consideration of the best interests of the children only applied to children that are British Citizens; (Issue A);

b) has failed to promote the best interests of the Claimant's children by failing to perform her duty to carry out investigations to ascertain what those best interests were (Issue B); and

c) Has failed to consider the Claimant's concern relating to the risk of Female Genital Mutilation ("FGM") (Issue C).

14. The case for the Secretary of State is that she complied with her duty in deciding to certify the Claimant's human rights claim taking into account as a relevant factor, the best interests of the Claimant's children, although as I will explain in paragraph 21, the matter was expressed differently by the Secretary of State in the Detailed Grounds.. Although the claim is a challenge to the April 2011 decision of the Secretary of State to certify the claim as clearly unfounded, she subsequently made further decisions to the same effect in the June 2011 letter and in the December 2011 letter. Both parties have very sensibly agreed to enlarge their submissions to embrace the challenges to include these decisions.
15. There is no dispute between the parties as to the principles to be applied in challenging the lawfulness of the Secretary of State's decision to certify the Claimant's application as clearly unfounded. Part 5 of the 2002 Act sets out a comprehensive statutory code for dealing with immigration appeals. By s82, a person may appeal to the First Tier Tribunal (Immigration and Asylum Chamber) (the "Tribunal") against an "immigration decision". Section 82(2) sets out an exhaustive list of decisions that constitute an "immigration decision" and which, therefore, carry a right of appeal.
16. The location of the right of appeal is dealt with in section 92. An appeal shall only take place whilst the appellant is in the UK if it is of a kind to which the section applies: section 92(1). Section 92(2) sets out a limited number of immigration decisions from the exhaustive list in section 82(2) to which section 92 applies. By section 92(4)(a), the section also applies if the appellant has made an asylum claim or a human rights claim while in the UK.
17. The statutory power to certify an asylum claim as 'clearly unfounded' is set out in s94(2) of the 2002 Act and that section provides that:-

"94 Appeal from within United Kingdom: unfounded human rights or asylum claim

(1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both).

(1A) A person may not bring an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e) or (ha) or in reliance on section 92(2) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) above is or are clearly unfounded.

(2) A person may not bring an appeal to which this section applies in reliance on section 92(4)(a) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded."

18. The challenge in this claim is to the Secretary of State's certification of the claim as clearly unfounded. Lord Hope of Craighead (with whom other members of the Appellate Committee agreed) explained the proper approach to this section is that:-

"34 By adopting the language of the international instruments Parliament has made it clear that the issue as to whether the allegation is manifestly unfounded must be approached in a way that gives full weight to the United Kingdom's obligations under the ECHR. The question to which the Secretary of State has to address his mind under section 72(2)(a) is whether the allegation is) "is one in respect of which a claim must be so clearly lacking in substance that it is bound to fail"; Yogathas and Another v Secretary of State for Home Department [2003] AC 920.

19. Lord Hope subsequently explained in ZT (Kosovo) - v - SSHD [2009] 1 WLR 348 that "52..;the focus of the test in section 94 is primarily on the quality of the claim rather than the prospects of success on an appeal".
20. The Court of Appeal in VL and VL v Secretary of State for Home Department [2003] 1 WLR 1230, was concerned with the transitional provisions in s115 of the 2002 Act and the proper approach to certifying claims as "clearly unfounded". The court stated that:-

"…The test is an objective one: it depends not on the Home Secretary's view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not." [Paragraph 56]

…It is useful to start with the ordinary process, such as s115 (1) calls for. Here the decision-maker will —

i) consider the factual substance and detail of the

claim

ii) consider how it stands with the known

background data

iii) consider whether in the round it is capable of

belief

iv) if not, consider whether some part of it is capable

of belief

v) consider whether, if eventually believed in whole

or in part, it is capable of coming within the

Convention."

"If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not." [Paragraph 57]

III. Ground A

21. Mr. Abid Mahmood counsel for the Claimant contends that the Secretary of State erred when she stated in her detailed Grounds at paragraph 19 that: -

"the Claimant gains little support from ZH (Tanzania). Their Lordships were concerned with children that were both British citizens, having been born in the UK to parents, one of whom was a British citizen…Their Lordships were concerned in particular with circumstances in which it is permissible to remove or deport a non-citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave".

22. More specifically, he complains that the assertion by the Defendant in the Detailed Grounds of Defence that "the claimant would gain little support from ZH (Tanzania)" on the grounds that the Supreme Court was concerning itself with "children that were British citizens, having been born in the UK to [one British parent]" is misdirected.
23. It is important to appreciate that the statement which has been criticized is to be found in the Secretary of State's Grounds for opposing the present claim. Very significantly, it was not contained in any of the decision letters which are under challenge, which are the critical documents in this case Indeed Mr Vinesh Mandalia counsel for the Secretary of State makes it very clear that the Secretary of State accepts the duty to consider the welfare of non-British children and he submits that the Secretary of State complied with that duty. Indeed the Secretary of State referred to her duties under section 55 of the 2009 Act in the April 2011 decision letter, in the June 2011 letter and in the December 2011 letter and also in paragraph 25 of the Grounds shortly after the passage quoted in paragraph 22 above.
24. Mr. Mandalia points out that in ZH, Baroness Hale of Richmond JSC in giving a speech with which other members of the Supreme Court agreed stated that: -

"30. Although nationality is not a 'trump card' it is a particular importance in assessing the best interests of any child".

25. Nevertheless, it is quite clear that the Secretary of State has explained in each of the three decision letters that she has substantial obligations in respect of non-British children pursuant to section 55 of the 2009 Act, which states that: -

"(1) The Secretary of State must make arrangements ensuring that –

a. [Her immigration, asylum and/or nationality functions]…are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom."

26. The significance of the best interest of the child was authoritatively explained by Baroness Hale in HH v Deputy Prosecutor Italy & Others [2012] 3 WLR 90 when she stated that:-

"15 However the matter is put, therefore, ZH (Tanzania) made it clear that in considering article 8 in any case in which the rights of a child are involved, the best interests of the child must be a primary consideration. They may be outweighed by countervailing factors, but they are of primary importance. The importance of the child's best interests is not to be devalued by something for which she is in no way responsible, such as the suspicion that she may have been deliberately conceived in order to strengthen the parents' case."

27. Baroness Hale also explained in her judgment why the interests of the children are important and must be a primary consideration. It is necessary to bear those principles in mind and I will do so. Those principles are that:-

"33…The family rights of children are of a different order from those of adults, for several reasons. In the first place, as Neulinger and ZH (Tanzania) have explained, article 8 has to be interpreted in such a way that their best interests are a primary consideration, although not always the only primary consideration and not necessarily the paramount consideration. This gives them an importance which the family rights of other people (and in particular the extraditee) may not have. Secondly, children need a family life in a way that adults do not. They have to be fed, clothed, washed, supervised, taught and above all loved if they are to grow up to be the properly functioning members of society which we all need them to be. Their physical and educational needs may be met outside the family, although usually not as well as they are met within it, but their emotional needs can only be fully met within a functioning family. Depriving a child of her family life is altogether more serious than depriving an adult of his. Careful attention will therefore have to be paid to what will happen to the child if her sole or primary carer is extradited. Extradition is different from other forms of expulsion in that it is unlikely that the child will be able to accompany the extraditee. Thirdly, as the Coram Children's Legal Centre point out, although the child has a right to her family life and to all that goes with it, there is also a strong public interest in ensuring that children are properly brought up. This can of course cut both ways: sometimes a parent may do a child more harm than good and it is in the child's best interests to find an alternative home for her. But sometimes the parents' past criminality may say nothing at all about their capacity to bring up their children properly. Fourthly, therefore, as the effect upon the child's interests is always likely to be more severe than the effect upon an adult's, the court may have to consider whether there is any way in which the public interest in extradition can be met without doing such harm to the child".

28. It therefore now becomes necessary to see whether the Secretary of State complied with those duties in this case against this background explained in Baroness Hale's words in EM (Lebanon) v Secretary of State [2009] 1 AC 1198, 1221 when she said that: -

"49…It cannot be assumed that the interests of all the family members are identical. In particular, a child is not to be held responsible for the moral failures of either of his parents…"

29. Turning to the way in which the Secretary of State sought to comply with her duty, there were two pieces of evidence adduced by the Claimant made available to the Secretary of State before she made the April decision. First, he had made a witness statement explaining first that his children had no connections to Nigeria; second that they had grown up in this country; third that they were settled at school, while as a family they had developed a private and family life here in the United Kingdom; and fourth in relation to the asylum claim with which this application is not concerned that "the prospects of being returned to a country where there are enemies on both sides holds me with dread".
30. Second, there was a letter dated 2^nd February 2011 from the Head Teacher at Mossley Primary School in Walsall which explained that Simson, the Claimants son, and his daughter Oladoyin "are settled and happy in their respective classes" and that "Simson has made ample progress whilst here, and speaks fluent English with good understanding". The Head Teacher concluded that:-

"It would be extremely detrimental to move the children, as al of them are well settled and happy, and causing such disruption could severely affect the education and achievements of Simson and Oladoyin. They both enjoy coming to school to enhance their learning, and have strong friendship links to their classmates and teachers. Simson and Oladoyin both have excellent attendance, and Olanlesi will be offered a place in our Nursery in September, so that all of the children will be attending the same school".

31. In a subsequent letter from the school dated 2 March 2012 that was not before the Secretary of State at the time of her decisions, but put before the court in this claim for Judicial Review, it was also pointed out in the letter that Oladoyin had left the school on 17 March 2011 while the youngest child of the claimant Olanlesi had not attended the school. That letter repeated the assertion that it would be detrimental for Simson to leave the school and that his confidence would only continue if he has "a stable and secure life". As I explained in paragraph 10, the claimant and his wife signed declarations later in 2011that they had no contact with each other or knowledge of each other's whereabouts.
32. In the 18 April 2011 decision, the Secretary of State dealt at length with why the asylum claim had to be rejected and she then proceeded to consider Section 55 and the document "Every Child Matters: Change for Children" which has been issued under Section 55 of the 2009 Act. The decision letter noted that Simson was progressing well and it referred to the letter from the school, while the Claimant's youngest child did not currently attend school due to her age.
33. Obviously what was a matter of substantial importance is considering the Article 8 issue was to determine what would happen to the Claimant's children when they returned to Nigeria. In paragraph 69 of her decision letter of 18 April 2001, the Secretary of State sets out much objective information relating to schooling in Nigeria and in particular the UNICEF report of 24 November 2006 as well as Nigeria's Universal Basic Education Law of 2004 before noting among other things that most schools in Nigeria provide instruction in English. The letter concluded by stating that the Claimant's children, upon their return to Nigeria, would have access to education and could continue their studies. This decision letter noted that the Claimant's children and the Claimant had no medical condition and that the Claimant's children were dependent on the Claimant and his wife for care while the mother of Simson still lived in Nigeria. Thus she concluded that:-

"73, It is considered after taking into account your children's particular circumstances in the UK that it would be in your children's best interests to return with you and their mother to Nigeria".

34. In the Pre-Action Protocol letter sent by the claimant's solicitors to the UK Border Agency after receiving the decision letter of 18 April 2011, it was noted that in the initial decision letter there had been no consideration of the statements in ZH (Tanzania), which made it clear that the rights of the children would be of primary consideration.
35. It was also said in that letter that the decision in LD (Article 8 Best Interests of the Child) (Zimbabwe) [2010] UKUT 278 (IAC) made it clear that very weighty considerations were needed to justify separating a parent from a minor child or child from a community in which he or she had grown up and had lived for most of his life. The decision letter according to the Claimant's solicitors failed to identify those "weighty reasons". It was also said that the Claimant's return to Nigeria would be unlawful because it prejudiced the outcome of those contact proceedings and would deny the Claimant the prospect of succeeding on this claim. The solicitors referred to MH (Pending Family Proceedings-Discretionary Leave) Morocco [2010] UKUT 439 (IAC) which stated that "a decision to remove an applicant in the process of seeking a contact order may violate Article 8 ECHR on the basis that removal of a parent/applicant during contact proceeding would be unlawful because it prejudged the outcome of the proceedings and more importantly denied the applicant all possibility of any further meaningful involvement in proceedings which might breach Article 8 ECHR". It now appears that the claimant does have contact with his two younger children.
36. This was followed by the June 2011 letter, which identified the issues raised by the Claimant, and it explained that the best interests of the child pursuant to Section 55 of the Borders Citizen Immigration Act had been properly considered.
37. It was pointed out that LD does not apply because it only arises where (with emphasis as in the original) "weighty reasons would be required to justify separating a parent from a lawfully settled minor child or child from a community in which he or she had grown up and lived for most of his or her life." The Secretary of State's letter explained that the LD principle did not apply to the children involved in the present case as they had not been settled lawfully in the United Kingdom, because their mother and principle carer had entered the United Kingdom since 2006.
38. In answer to the contention about ongoing legal proceedings, it was pointed out in the June 2011 letter that the MH case was not applicable because unlike the Claimants in that case, the Claimant's children in the present case were not of British descent and that they had no legal right to remain in the United Kingdom unlike the daughter of MH. In addition, the Claimant's children were subject to imminent removal to Nigeria as they were dependent on their mother whose asylum claim had been certified.
39. It was also pointed out that any ongoing legal proceedings with regard to the Claimant's contact with his children could be continued upon his return to Nigeria and reference was made to the Country of Origin Information Service Report for Nigeria (April 2011) which showed that there were adequate provisions in the Nigerian judicial system which the Claimant could pursue to give formal access and contact to his children.
40. After Lindblom J gave permission to the claimant to pursue his judicial review application, the Secretary of State gave further consideration to the issues raised and specifically the best interests of each of the children. The Secretary of State reconsidered the application and in the December 2011 letter, she explained that the wife of the Claimant from whom he was separated, had made an application for asylum, which was refused and had been certified as clearly unfounded. At that stage, the Claimant's wife had not challenged that decision which meant that she and her two youngest children were liable to removal to Nigeria. It was also pointed out that on 12 October 2011, the Claimant's wife signed a statement confirming that she was sole carer of the two younger children and that neither she nor her children had any contact with the Claimant or knew of his whereabouts.
41. The letter pointed out that in paragraph 25 of her judgment in ZH, Baroness Hale explained that national authorities were expected to treat the best interests of the child as "a primary consideration" but that "a primary consideration" is not the same as "the primary consideration" and still less "the paramount consideration".
42. The letter also explained that Simson had no other family members in the United Kingdom other than the Claimant, his step-mother and siblings, but all of them would be returning to Nigeria and that he did have an extended family there. Consideration was given to the letter from the Head Teacher at Mossley Primary School to which I have referred in paragraph 30 above. It was also pointed out that the Claimant's children would have in Nigeria a proper opportunity to build upon the educational progress that they had made whilst at school in the United Kingdom and that they are at an age at which they would make new friends in their own community.
43. The December 2011 letter concluded that having given consideration to the ruling of the Supreme Court in ZH and the best interests of the Claimant's children, the removal of the Claimant and his son would be appropriate in the circumstances. It is necessary to consider this in the light of the matters that were set out by Baroness Hale in ZH at paragraph 29 which states that: -

"Applying, therefore, the approach in Wan to the assessment of proportionality under article 8(2), together with the factors identified in Strasbourg, what is encompassed in the "best interests of the child"? As the UNHCR says, it broadly means the well-being of the child. Specifically, as Lord Bingham indicated in EB (Kosovo), it will involve asking whether it is reasonable to expect the child to live in another country. Relevant to this will be the level of the child's integration in this country and the length of absence from the other country; where and with whom the child is to live and the arrangements for looking after the child in the other country; and the strength of the child's relationships with parents or other family members which will be severed if the child has to move away."

44. Applying those principles, it is clear that the Claimant's wife and his two children would have to return to Nigeria as they had exhausted all their rights to remain in this country. So far as Simson has been integrated in this country, it is correct that at his age, he could make other friends in Nigeria. Simson has been in this country since 2006 for almost 7 years, but the arrangements for him in Nigeria would be that he would be looked after by his father. That is the present position in this country. Furthermore, his mother also appeared to be in Nigeria and so there do not appear to be any other family relationship, which would be severed if he has to move away from this country to Nigeria. Further his educational requirements could be met in Nigeria as well. This would suggest subject to the points made by Mr. Mahmood to which I will refer in the remainder of this judgment that the challenges to the certification of the claimant's claim must fail.
45. In his attempt to show that the claimant's human rights claims were not "clearly unfounded", Mr. Mahmood attached some weight to the fact that paragraph 276 ADE of the Immigration Rules HC395 (as inserted in July 2012) would enable the claimant's son Simson to obtain leave to remain in the United Kingdom if:-

"at the date of the application [to remain on the grounds of private life in the United Kingdom he] (iv) is under the age of 18 and has lived continuously in the United Kingdom for at least 7 (discounting any period of imprisonment)".

46. This, it is said, could enable Simson, who arrived in the United Kingdom in February 2006 to take advantage of that rule in February 2013. I do not consider that this would enable the claimant to impugn the decisions of the Secretary of State because first the April 2011decision was made on 18 April 2011 which was not only 22 months before Simson could have acquired his rights under that provision but also over 15 months before the rule in paragraph 276 CDE came into force. The decisions of the Secretary of State in the June and December 2011 letters also were made well before the rule was introduced. Indeed even if the rule had been introduced at the time of her decision, the Secretary of State would have been required to bear in mind that there was no certainty that Simson would have completed the required residence qualification.
47. This ground of appeal must be rejected and none of the submissions under this head show that the decisions under challenge were flawed. I will return to consider if the certificate can be impugned when I have dealt with the remaining issues.

IV. Ground B

48. It is contended by Mr Mahmood that the Secretary of State failed to promote the interests of the Claimant's children, as she was required to do by failing to perform her duty to carry out investigations to ascertain what their best interests were.
49. Mr Mahmood relies on a number of judicial comments to substantiate this claim that inquires should be made. He points out that in HH v Deputy Prosecutor of Italy (supra) it was pointed out that if the children's interests are to be properly taken into account by the court dealing with an extradition application, it will need to have some information about them in a way similar to the domestic sentencing practice (paragraph 82) and the cases in which the court is likely to require further investigation are where the extradition of both parents or the sole or primary carer is sought (paragraph 83). Baroness Hale pointed out that some of the information should be available from the parents, but that the courts might also wish to make a referral to the Local Children's Services.
50. Baroness Hale also stated that Article 12 of UNCRC requires States to assure to the child, who is capable of expressing his or her own views, the right to express those views freely in all matters affecting the child and that the views of the child should be given due weight in accordance with their age and maturity.
51. It must be stressed that these issues were raised in a case concerning an extradition order, which would have required a parent to be removed from this country without the child concerned. That situation in which a child is to be parted from a parent who might be removed to a different country in such proceedings is totally different from the present case where the Claimant and his son were not being separated. Indeed, unlike a case in which a father is extradited, in this case on removal the claimant and his son would continue to live together if removed to Nigeria.
52. In support of his submission that the Secretary of State has a duty to investigate, Mr Mahmood also relies on the decision of His Honour Judge Thornton QC in The Queen (on the application of Tinizary) v Secretary of State for the Home Department [2011] EWHC 1850 (Admin) in which he said that the guidance given by Baroness Hale in ZH makes it clear that: -

"24…it is not sufficient for the decision-maker to rely solely on information volunteered by a child's parent, particularly if it is clear that the information is either incomplete or potentially slanted. In such cases, further information must be sought by the decision-maker including, in appropriate cases, interviews of the applicant and separate interviews of the child, questionnaires and seeking or soliciting the views, assessments and reports of other agencies such as local authority, social services, CAFCAS or local children's welfare groups."

53. The judge quashed the decisions in that case because of the inadequate information available to him and the need for the Secretary of State to make further inquiries. Such decisions by their nature must be fact-sensitive. Indeed in Tinizary, the judge was influenced by the fact that there was much missing information which "could have been obtained by appropriate requests for it to be supplied that could have been directed to the applicant's solicitor and to [one of his children's] school and the appropriate third party agencies" (paragraph 27(1)). It was also said in that case that each decision was fatally flawed as among other things it had only had sparse information about the position of children in both England and Ecuador, which is the country to which they were to be removed.
54. That criticism cannot be made of the decision in this case because, as has been explained, the decision-maker in the present case had a letter from the Head Teacher of Simson's school and much information about the Nigerian school system and how he could fit into it. No cogent argument has been put forward that more information could or should have been provided.
55. Similarly in the case of Tinizary, a complaint was made that there was no consideration of whether a child affected by removal would need professional guidance and assistance before any enforcement took place. There has been no similar suggestion in this case by the Claimant's solicitors in their representations in this case and no fact has been put forward in submissions to show the position is similar. The evidence adduced by the claimant in Tinizary when considered in the light of the objective evidence showed that further investigation was required.
56. I must also consider the suggestion that in cases in which an immigration decision is to be made there is no need for a full blown investigation by the Secretary of State concerning matters relating to the child's future. I have borne in mind that guidance on the approach to the issue of what is in a child's best interest was considered by the Strasbourg Court in Neulinger and Shuruk v Switzerland [2011] 1 FLR 122. The impact of that decision in the domestic context was considered by the Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144, 157 when Baroness Hale and Lord Wilson JJSC in giving the judgment of the Supreme Court stated (with emphasis added) that:-

"26 The most that can be said, therefore, is that both Maumousseau and Neulinger acknowledge that the guarantees in article 8 have to be interpreted and applied in the light of both the Hague Convention and the UNCRC; that all are designed with the best interests of the child as a primary consideration; that in every Hague Convention case where the question is raised, the national court does not order return automatically and mechanically but examines the particular circumstances of this particular child in order to ascertain whether a return would be in accordance with the Convention; but that is not the same as a full blown examination of the child's future; and that it is, to say the least, unlikely that if the Hague Convention is properly applied, with whatever outcome, there will be a violation of the article 8 rights of the child or either of the parents. The violation in Neulinger arose, not from the proper application of the Hague Convention, but from the effects of subsequent delay."

57. It was said by counsel for the Secretary of State that the reference in that passage to the absence of a need for a "full blown examination of the child's future" means that the Secretary of State is absolved from the need to carry out her own investigations in cases such as the present where the issue is whether a section 94(3) certificate should be set aside. I am unable to agree because what was stated in that passage in Re E related to the appropriate level of scrutiny of applications under the Hague Convention. Such cases are based on a special regime which is very different from the scrutiny which is involved in a case such as the present one which entails a different form of inquiry as required by section 55 of the 2009 Act and to which I have referred in paragraph 25 above.
58. It is very important to stress some of the salient and distinguishing features of the Hague Convention applications, which are helpfully explained in Children Law and Practice (volume 2) by Hershman and McFarlane, who state that the Convention is:-

"giving effect to a belief that it is in the interests of children that parents and others should not abduct them from one jurisdiction to another, and that any decision relating to the custody of the children is best decided in the jurisdiction of their habitual residence"(paragraph G145).

59. The authors proceed to state that:-

"The English courts have consistently emphasised that in Hague Convention proceedings the child's welfare is not the paramount consideration and that the primary object of the Hague Convention is to ensure the summary return to the country of habitual residence of children wrongfully removed or retained"( paragraph G159).

60. Indeed, Article 1 of the Convention states that:-

"The objects of the present Convention are:

(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure the rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States."

61. There is therefore a sharp contrast between the tests to be applied in Hague Convention cases as compared with cases where section 55 applies. There are cases in which the Secretary of State's duty under section 55 of the 2009 Act requires her to carry out a detailed investigations to ascertain relevant facts. For example, if there is evidence that a child of an applicant for leave to remain has a serious illness of a life-threatening nature but which is not specified in much detail but which is said to be a factor which should prevent the child and his parent being removed, the Secretary of State might well then be required to obtain or even procure evidence either from the child's doctor or from an independent doctor which would enable her to make an informed decision which would satisfy the obligation imposed on her to reach a decision which satisfies "the need to safeguard and promote the welfare of children who are in the United Kingdom" set out in Section 55 of the 2009 Act.
62. Indeed in this case, the Secretary of State actually carried out proper and helpful inquiries relating to the educational system in place in Nigeria as I set out in paragraph 33 above. Turning to the facts in the present case, as I have explained, a detailed report had been obtained from the Head teacher of Simson's school. Nothing has been put forward to show there was any further information that could reasonably have been required and it is noteworthy that the solicitors for the Claimant in their Pre-Action Protocol letters of 26 May 2011 and 3 June 2011 do not put forward any cogent reasons that any further investigation was called for and which would have or might have led to a different conclusion being arrived at.
63. It is noteworthy that in the Pre-Action Protocol letter of 3 June 2011, the Claimant's solicitors attached a letter of 27 April 2011 from CMHT Quality Solicitors, which sets out the background to issues relating to the circumstances in which the family had separated. It is quite clear that the Claimant's solicitors appreciated the need to put all further information in front of the Secretary of State which might assist the Claimant and his son. Nothing further could have been gained by the Secretary of State making further inquiries about the position relating to contact between the claimant and his son and his step mother and his half sisters. Indeed such inquiries would have shown that the claimant's wife and daughters had no right to remain in the United Kingdom and that they would be likely to be removed to Nigeria. This inquiry would not have undermined this conclusion.
64. Against that background it is difficult to see what further investigations were required. This Ground must therefore be rejected.

V. Ground C – FGM

65. It is said that the risk remained on return that the two daughters of the Claimant would be subject to FGM. It is noteworthy that in the Claimant's witness statement there was no reference to the risk of the Claimant's daughters being subjected to FGM, but this issue was raised by the Claimant's wife in connection with her asylum claim and it was responded to at length in the Secretary of State's decision letter of 1 April 2011 refusing her application and certifying it as clearly unfounded.
66. The conclusion of the Secretary of State was that from the information obtained in the objective evidence, it was considered that NGOs in Nigeria were willing to offer protection for women at risk of experiencing FGM. The Claimant's wife had accepted that and acknowledged that such NGOs might be willing to help her but "it will not be forever". The Secretary of State noted that the claimant's wife had not adduced any evidence to support her assertion that the NGOs would withdraw their support for any reason. So the Secretary of State was entitled to conclude that as the claimant's wife and his daughters could approach for protection such NGOs as an alternative to the authorities.
67. Alternatively, it was concluded that the claimant's wife and daughter could relocate internally within Nigeria to Lagos so as to avoid the risk of FGM being carried out. As has been explained, the Claimant's wife has failed to obtain permission to pursue her claim and did not seek to renew it. In my view, for those reasons, there is no ground for complying with this ground.

VI. Conclusion

68. Pulling the threads together and taking account of the Secretary of State's section 55 obligations I am satisfied that the claimant's article 8 claim cannot possibly succeed. If removed to Nigeria, the claimant's children will remain with the parent who has been looking after them in this country. Their educational and other needs will be met in Nigeria as I explained in paragraph 44 above.
69. I have considered all the complaints of the claimant cumulatively and have concluded that in the words of Lord Hope the claim of the claimant was so "lacking in substance that it is bound to fail". Notwithstanding the careful and detailed submissions of Mr Mahmood, this application must be refused.