QUEEN'S BENCH DIVISION
The Priory Courts, 33, Bull Street, Birmingham B4 6DS
B e f o r e :
(sitting as a High Court Judge)
| Regina (on the application of Daoud Zermani)
|- and -
|Secretary of State for the Home Department
Shakil Najib (instructed by Treasury Solicitor for the Defendant
Hearing date: 20 March 2015
Draft Judgment: 27 March 2015
HTML VERSION OF JUDGMENT
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HHJ WORSTER :
The Claimant exhausted his appeal rights in September 2010. In November 2011 he made the application which leads to these proceedings. His solicitors wrote a detailed and well structured letter to the Respondent. It refers to his conviction and some of the other difficulties in his immigration history, but then seeks to demonstrate that his conduct has changed and that he has become a particularly valuable member of his community.
The Secretary of State is requested to give due consideration to the vital role our client plays within the community in various respects. He would not only be dearly missed but his place would be hard to fill in terms of the value he has provided to the community
The letter then refers to the "devastating impact" both for himself and the organisations he has assisted if he is removed. It submits that removal would be disproportionate. It ends by requesting that the Secretary of State applies her discretion and grants leave to remain outside the Rules.
"Within my role as Diversity Officer, there have been occasions when I have needed assistance and guidance whilst helping the Muslim Community. Mr Zermani has always assisted me with such guidance without question. Should he be unable to help then he has been able to refer me to others who can".
The letter refers to their work encouraging the reporting of hate crime, and supporting victims of those crimes. The officer says that he "... is one of the persons for whom I feel trust in doing such a task". Again there is reference to his involvement in community events.
The Claim Form was filed on 26 July 2013. In terms of the facts, it relies heavily on the letter the Claimant's solicitor wrote with the application. As to the legal argument, there are two principal strands. The first is that a consideration of an application based on private life under the Rules alone may not be a sufficient Article 8 assessment. There is reference in particular to the decision of Sales J in R (on the application of Nagre) v SSHD  EWHC 720 (Admin). The second strand deals with the relevance to the public interest of the proposed removal of someone who is of great value to the community. The principal case here is UE (Nigeria) v SSHD  1 WLR 127.
Following your client being granted permission to apply for judicial review .... further consideration has been given to your client's case. This is supplementary to our decision letters of 21 January 2011, 19 December 2012 and 27 April 2013.
The Claimant's position is that this represents an acceptance that the decision of December 2012 was flawed, and that the Court should quash it.
(1) Was the Claimant's application outside the Rules so hopeless that the decision would inevitably have been the same?
(2) If not, does the supplementary decision letter render the claim academic?
The issue in UE (Nigeria) was whether it was relevant for a decision maker carrying out the balancing exercise required to determine whether removal was proportionate in an article 8 case to have regard to the fact that the person in question was of value to the community, a value which the community would be deprived of if he were removed. The leading judgment in the Court of Appeal is from Sir David Keene. The first passage of particular relevance to this case is at paragraphs at - of his judgment.
18. The decision of this court in JO (Uganda) does indeed make the point that the matters of public interest to be taken into account should be ones which relate to the legitimate aim being pursued in immigration cases, namely that of maintaining effective immigration control. But that in itself raises the question of what matters are relevant to that aim. The House of Lords decisions to which I have just referred indicate that one should not seek to answer that question in too narrow or restrictive a fashion. For example, if the immigrant has a history of fathering illegitimate children in this country who then become a burden on the public purse, that would seem to me to be a consideration relevant to the need for effective immigration control. It is something which enhances the importance of immigration control being effectively exercised in that individual case. But by the same token a public interest in the retention in this country of someone who is of considerable value to the community can properly be seen as relevant to the exercise of immigration control. It goes to the weight to be attached to that side of the scales in the proportionality exercise. The weight to be attached to the public interest in removal of the person in question is not some fixed immutable amount. It may vary from case to case, and where someone is of great value to the community in this country, there exists a factor which reduces the
importance of maintaining firm immigration control in his individual case. The weight to be given to that aim is correspondingly less.
19. None of this means that the individual is being rewarded for good behaviour. It goes instead to the strength of the public interest in his removal and how much weight should be attached to the need to maintain effective immigration control in his particular case.
35. For my part, therefore, I conclude that it is open to this court to find that the loss of such public benefit is capable of being a relevant consideration when assessing the public interest side of proportionality under article 8 and as a matter of principle I do so find. That is where this aspect comes in to the proportionality exercise…
36. I would, however, before concluding, emphasise that, while this factor of public value can be relevant in the way which I have described, I would expect it to make a difference to the outcome of immigration cases only in a relatively few instances where the positive contribution to this country is very significant, perhaps of the kind referred to by Lord Bridge of Harwich in Ex p Bakhtaur Singh  1 WLR 910. The main element in the public interest will normally consist of the need to maintain a firm policy of immigration control, and little will go to undermine that. It will be unusual for the loss of benefit to the community to tip the scales in an applicant's favour, but of course all will depend upon the detailed facts which exist in the individual case and in particular on the extent of the interference with his private and/or family life.
41. ... I consider that contribution to the community is not a
freestanding or stand-alone factor to be put into the Article 8 balance as an independent consideration in its own right. It can affect the balance only in so far as it is relevant to the legitimate aim or the private life claim.
42. It is common ground that community activities may affect the strength of the private life claim, and this was something that the Immigration Judge had properly in mind in his determination.
43. As to the other side of the balance, in MA (Afghanistan)  EWCA Civ 1440 at paragraph 28 Moses LJ suggested that "It may well be that the benefit of the community of the work performed by the applicant diminishes the weight to be given to the public interest in immigration control." ... Faced with the issue in the present case, however, I would accept that the matters relied on here by way of contribution to the community are indeed capable in principle of affecting the weight to be given to the maintenance of effective
immigration control. I agree that that public interest aim can and should be viewed sufficiently widely and flexibly to accommodate such considerations. But they do not have as obvious a bearing as, for example, delay by the Secretary of State in processing a claim or the applicability of a specific immigration policy favouring the applicant, and I doubt if they would in practice carry a lot of weight even on the relatively favourable facts of the present case. But I do agree that they should not be excluded from consideration altogether.
In the argument before Your Lordships it was not disputed that the effect of deporting a particular individual on third parties other than his family and persons intimately connected with him may well be a factor which is relevant to the discretionary decision whether he should be deported or not. A number of examples will make this clear. 1. A person liable to deportation has been carrying on business in partnership. His deportation will ruin the partnership business. 2. A person liable to deportation is an essential and irreplaceable worker for a company engaged in a successful export business. His deportation will seriously impair the business. 3. A person liable to deportation is a social worker upon whom a particular local community has come to depend. His deportation will deprive the local community of his services which will be difficult to replace. 4. A person liable to deportation is an indispensable member of a team engaged in scientific research of public importance. His deportation will put at risk the benefit which the public would enjoy if the research were successful. I have tried to choose the examples so as to illustrate the possibility of the third party interest in avoiding deportation extending to a progressively widening circle and ultimately to the public as a whole.
The question what weight is to be attributed to third party interests of the kind I have been discussing which would be adversely affected by a decision to deport is entirely a matter for the Secretary of State or the appellate authorities exercising discretion under the statute and must depend upon all the other relevant circumstances in the context of which the decision falls to be made. It may well be difficult to attach any considerable weight to the third party interest affected if the person liable to deportation has established his reputation and proved the value of his services from which the third party interest arises during a period when his presence in this country was in contravention of the immigration laws. However, that is not for Your Lordships to decide.
As to the question of an appeal to an immigration judge – and this is about taking account of all relevant factors – there is in my view no prospect of success. Worthy and valuable to the community though the petitioner's enforced voluntary work may have been during his precarious and unlawful residence, it counts for nothing in the situation where the petitioner now seeks to remain lawfully with the opportunity to put his skills to remunerative use. There is no suggestion, and I do not think that I am bound to assume that the petitioner would be practically irreplaceable if he were to charge for his services. The examples given by Lord Bridge of Harwich in Bakhtaur Singh were about individuals who had been practically indispensible in lawful business or lawful employment and who would continue to be indispensible if their various lawful occupations if not deported. Lord Bridge doubted that "any considerable weight" could be attached to services provided during a period of unlawful residence. I conclude that though the decision maker has failed to take account of something which appears from the decision in UE to be a relevant, though not a weighty consideration, there is no chance that factoring in community benefit on the basis of past unlawful residence would change the outcome in the circumstances of this case.
He decided that whilst there was an error of law, it was not material and there was no need for a redetermination.
As the opening paragraph makes plain, the letter is supplementary to the first decision. But it is a far more detailed consideration. It begins by setting out the Claimant's immigration history. At paragraph 17 there is the first mention of the application:
You state that your client's removal from the United Kingdom would have an impact that would be wholly disproportionate, unfair and unjustifiable. In your letter dated 14 November 2011 you state that your client has established a private life in the UK and you provide the following in support of your submissions:
- Various academic certificates
- Letters from Welsh Refugee council
- Varying letters of support
You have asserted that your client has undertaken voluntary work in the community and has sought to further his education while residing unlawfully in the UK. It is accepted that, on the evidence provided, that he has developed a private life. However it is not accepted that the existence of your client's private life in the United Kingdom is a sufficiently compelling reason for making him an exception to the normal practice of removing those who have remained in the United Kingdom unlawfully. In order to protect the wider interests and rights of the public and the economic well being of the country, it is vital to maintain effective immigration control. In pursuit of that aim and having weighed up your client's interests against it, it is believed that any interference with your client's private life would be a legitimate, necessary and proportionate response and in accordance with the law.
Very careful consideration has been given to whether there are individual circumstances in your client's case which, consistent with the right to respect for private life contained in Article 8 of the European Convention on Human Rights, are genuinely exceptional enough to warrant an exercise of discretion outside the Immigration Rules.
In this case there is nothing remotely exceptional about your client's circumstances....
Although your client may have friends in the UK he can reasonably maintain contact with them from Algeria and also continue with his community/voluntary work in Algeria.
The ability to maintain contact with his friends from Algeria is referred to again at paragraph 33, and at paragraph 35 the decision maker concludes that:
For these reasons it is considered your client's circumstances are not genuinely exceptional and his application is not distinguishable from those private life applications which would normally fall to be refused under the Immigration Rules.
The approach in this letter and in particular to "exceptional circumstances" reflects the guidance issued by the Respondent to her officials. At paragraph 49 of his Judgment in Nagre, Sales J says this:
Finally, I should mention that I do have some concern about the use of the label "exceptional cases", in the Secretary of State's guidance, to describe the area in which the Secretary of State's residual discretion operates. It is not wrong, as such, but there is some risk that busy, hard-pressed officials who refer only to the label might not clearly keep in mind the detail of the policy, and the particular nuance that the policy gives to he notion of exceptional cases, in identifying them with cases of disproportionality under Article 8. Officials should take care to avoid a "tick box" approach, genuinely bear the policy guidance in mind and seek to stand back after working through the analysis required under the new rules so as to make an overall assessment of the facts to see whether there might be a good arguable case of disproportionality if leave to remain is not granted and, if there is, to examine that case with care to see whether removal would be justified. The reasoning in decision letters should seek to demonstrate that this reasoning process has indeed been gone through.
... there is nothing in Aikens LJ's comment [in MM Lebanon] which casts doubt on Sales J's basic point that there is no need to conduct a full separate examination of article 8 outside the Rules where, in the circumstances of a particular case, all the issues have been addressed in the consideration under the Rules…
66. … Sales J's point is that the second stage can, in an appropriate case, be satisfied by the decision-maker concluding that any family life or private life issues raised by the claim have already been addressed at the first stage – in which case obviously there is no need to go through it all again. Mr Fordham's point is that that is a conclusion which must be reached as a matter of conscious decision in any given case and cannot simply be assumed. I agree with both points.
... The statement that the decision-maker "must be in a position to demonstrate" that he or she has given the necessary consideration is simply a reflection of the ordinary obligation to record a material decision. If the decision-maker's view is straightforwardly that all the article 8 issues raised have been addressed in determining the claim under the Rules, all that is necessary is, as Sales J says, to say so…