England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/03/2015

Mrs Justice McGowan :

1. This is the Claimant's application for judicial review of the decision made by the Secretary of State for the Home Department, ("SSHD") on 2 April 2013 and supplemented by the decision made on 21 May 2014. The claim is primarily based upon Article 8 of the ECHR and centres on the Claimant's relationship with his step-daughter M.
2. Anonymity has been granted in respect of the child in this case, known as M.

The Proceedings

3. Permission was granted on the papers by His Honour Judge McKenna on 30 December 2013, limited to the first ground of the application, namely that in reaching the first decision, ("D1"), the SSHD failed to have regard to the best interests of M.
4. Following the order granting permission the SSHD issued the second decision ("D2"). The Claimant has since lodged an application notice on 14 July 2014. That notice appends further grounds and abandons the point originally taken; that the Immigration Rules were ultra vires.
5. The Claimant now summarises his grounds of review in his skeleton argument as,

i) The SSHD has failed to comply with her duty to consider M's welfare as a primary consideration under s.55 of the Borders, Citizenship and Immigration Act 2009 and Article 8 of ECHR and

ii) That her consideration of M's best interests under s. 55 and article 8 must be Wednesbury unreasonable and or irrational given that such consideration is dealt with in a supplementary letter of decision.

6. The SSHD does not take a point on the amendment but rejects criticism of her decisions based on a failure to take account of evidence which was not produced until after her decisions had been reached.

The Background

7. The Claimant was born on 18 June 1997. He is a national of Malawi. He says he entered the UK in 2004, with entry clearance as a visitor valid from 22 November 2004 to 23 May 2005. There is no official record of the precise date of entry.
8. On 20 July 2005, he was given extended leave to remain until 30 September 2005 as a dependant of his then spouse, Thulupi Thonko, who was a student. When that expired he again applied on 26 April 2006 to extend his leave. This application was refused as it was made when the Claimant was already an overstayer and because it was not accompanied by the required documentation. That refusal did not give him a right of appeal.
9. That marriage ended in divorce in 2010. He met his current partner, Ms R, who is a national of South Africa. She has a daughter, M. He says they have lived as a family since 2010.
10. Ms R has indefinite leave to remain in the UK. M's status is not clear, although she has always lived here with her mother.
11. The application for leave to remain that resulted in D1 and D2 was made on 26 June 2012. The SSHD responded to the application with a request for information supporting the Claimant's application. On 15 February 2013 that was sent to the representatives on the record. No response was received to this request.
12. On 2 April 2013, the SSHD issued D1. This refused the Claimant's application for the following reasons as set out in the Defendant's skeleton argument:

"(1) The Claimant had failed to reply to the request for information of 15 February 2013, meaning his application fell for refusal with reference to section S-LTR.1.7 of Appendix FM of the Rules. This is a discrete and free-standing basis for refusal;

(2) It was not accepted that the Claimant was in a genuine and subsisting relationship with Ms R since only limited evidence of their claimed co-habitation was provided and because the tenancy agreement for their claimed residence was in Ms R's name only;

(3) It was not accepted that the Claimant had a genuine and subsisting parental relationship with M since there was no documentary evidence showing M's relationship with Ms R or that he lived with the Claimant; and

(4) The Claimant did not satisfy the requirements of paragraph 276ADE of the Rules, given his length of stay in the UK and his failure to demonstrate that he had no ties with Malawi."

13. On 8 April 2013 the Claimant learned that his representatives, UK Visa and Immigration, had gone into liquidation and that he would only be provided with a copy of his file on provision of proof of identity. He complied and in due course received a copy of his file. It was at this point that he received, for the first time:

i) notice that on 15 February 2013 the SSHD had requested that his solicitors provide further documents regarding his relationship with Ms. R; and

ii) A copy of the decision letter of 2 April 2013 (D1).

14. On 21 May 2014 D2 was issued, it was expressly stated to be supplemental to D1. D2 adopted the reasons set out in D1 as to the Claimant's failure to submit sufficient evidence of his claimed relationships, but also considered the application, in the alternative, on the basis that the Claimant did have the claimed relationships with Ms R and M. In particular, D2:

"(1) Gave express consideration to the need to have regard to the need to safeguard and promote the welfare of children per s. 55 of the Borders, Citizenship and Immigration Act 2009 ("the 2009 Act");

(2) Determined that there was no evidence showing that the Claimant could not relocate to Malawi as a family unit with Mr Riet and M, in particular by determining that the Claimant had not shown that there were insurmountable obstacles to his family life continuing abroad;

(3) Had regard, in the context of the above determination, to the availability of adequate educational facilities for M in Malawi and to the lack of evidence showing that the Claimant would not be able to provide for M's safety and welfare; and

(4) Concluded that it would not be disproportionate having regard to Article 8 ECHR (outside of the Rules) to remove the Claimant from the UK."

15. As set out above, it was following D2 being issued that the Claimant submitted the application notice of 14 July 2014 that seeks to rely on additional grounds, to challenge the SSHD's decisions.
16. No right of appeal arises from the SSHD's decisions, since the Claimant's applications for leave to remain were made when he was an overstayer.

Submissions

Failure to Provide Information - S-LTR.1.7 Appendix FM Immigration Rules

17. The SSHD takes a preliminary issue that, irrespective of any other consideration, the application should fail because the Claimant failed to provide further information when requested in February 2013. It is accepted that the letter was sent to a firm which had gone into liquidation, and consequently was not passed on the Claimant, but the SSHD argues that is ultimately the Claimant's responsibility as he had chosen a firm which turned out to be insolvent or incompetent or both. It is further submitted that it cannot be for the SSHD constantly to maintain a watch on the status of all those firms who hold themselves out as active and competent representatives of Claimants.
18. The harshness of such an outcome is acknowledged but the SSHD argues that a remedy was available. The Claimant could have made a new application at that stage instead of seeking to add further support to the original claim.
19. It is not necessary to decide this point as being determinative of the application in this case. It must be right that an inadequate application should not be allowed to proceed by default because a Claimant's representatives have gone into liquidation. Equally a Claimant cannot be expected to know or be able to check the current or future liquidity of his representatives.
20. If the claim was to fail on this ground then this Claimant might well be entitled to some from of redress against his current representatives for not advising him to issue a new application. However this point does not determine or contribute to the decision in this case.

Ground 1; The child's best interests.

21. This is the primary point at issue between the parties. Article 8 states that

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Section 55 of the Borders, Citizenship and Immigration Act 2009 sets out the duty imposed on the SSHD to have regard to the welfare of a child;

Duty regarding the welfare of children

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

(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.

22. The Claimant contends that D1 shows that no consideration was given to M's best interests, notwithstanding the information actually provided by the Claimant and his partner. He argues that it is for the SSHD to demonstrate that proper consideration was given to her welfare. He suggests that even if information he provided was not substantial, or possibly even adequate, once the child's presence as part of his family life had been raised it generated an obligation on the SSHD to seek further information and if inadequate information is provided, it is for the SSHD to try again.
23. The SSHD submits that she did seek further information and considered that material in supplementing D1 with the contents of the letter communicating D2. She argues that the material provided in reply was still limited and she cannot be expected to consider material that is not provided until after her decision has been reached. She nonetheless contends that proper consideration was given to all the material supplied both at the time of the application and subsequently.
24. The SSHD submits, in her skeleton argument, that in applying the following considerations she acted both rationally and in accordance with the following principles,

i) The best interests of a child are a primary consideration and so must be considered first. They can of course be outweighed by the cumulative effect of other considerations: ZH (Tanzania) v. Secretary of State for the Home Department [2011] UKSC 4, at para 33;

ii) The correct starting point in considering the welfare and best interests of a young child is that it is in the best interests of a child to live with and be brought up by his or her parents. Private life considerations outside of the family are unlikely to be significant in a child's early years: E-A (Article 8 – best interests of child) Nigeria [2011] UKUT 00315 (IAC);

iii) In this regard, the assessment of best interests must take account of the realities of the Claimant's lack of immigration status, per Lewison LJ in EV (Philippines) and others v Secretary of State for the Home Department [2014] EWCA Civ 874, at para 58:

"In my judgment, therefore, the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?"

iv) Finally, in assessing whether it is reasonable to expect a child to follow a parent, in cases in which family life has been established while one or more of the child's parents are in the UK unlawfully (i.e. a so-called precarious family life case), one of the relevant factors is whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them: Rodrigues da Silva, Hoogkamer v Netherlands (2007) 44 EHRR 34. Also, in the discussion of Sales J (as he then was) in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin)

"41. The approach explained in the Strasbourg case-law indicates that where family life is established when the immigration status of the Claimant is precarious, removal will be disproportionate only in exceptional cases; and also that consideration of whether there are insurmountable obstacles to the Claimant's resident spouse or partner relocating to the Claimant's country of origin to continue their family life there will be a highly material consideration. This is not to say that the question whether there are insurmountable obstacles to relocation will always be decisive. The statement of general approach referred to above refers to a range of factors which may bear upon the question of proportionality. ...

42… I consider that the Strasbourg guidance does indicate that in a precarious family life case, where it is only in "exceptional" or "the most exceptional" circumstances that removal of the non-national family member will constitute a violation of Article 8, the absence of insurmountable obstacles to relocation of other family members to that member's own country of origin to continue their family life there is likely to indicate that the removal will be proportionate for the purposes of Article 8. In order to show that, despite the practical possibility of relocation (i.e. the absence of insurmountable obstacles to it), removal in such a case would nonetheless be disproportionate, one would need to identify other non-standard and particular features of the case of a compelling nature to show that removal would be unjustifiably harsh."

25. There would undoubtedly be many difficulties for the Claimant's partner and M if they chose to move with him to Malawi. Any family moving abroad to a country like Malawi has to make very substantial adjustments. That will require anxious thought. If the Claimant's partner decides to go to Malawi with him, she would do so against the background that neither she nor her child has any previous connection to Malawi. There is nothing irrational or unreasonable in the consideration of that aspect by the SSHD, nor did she fail to consider relevant matters in reaching her decision. Ultimately the decision to go to Malawi is one for the mother to make. However difficult a choice, it is one which is open to her.
26. The result may be difficult for the Claimant but there is no failing on the part of the SSHD to consider the best interests of the child both under s.55 and Article 8 principles. The provision of education for girls was considered in reaching the SSHD's decision. The difference in the standard and extent of such provision was considered by the SSHD and would undoubtedly be an area that the Claimant and his partner would weigh carefully. There is an appreciable difference but it cannot be said that such provision is so inadequate that M would be denied viable educational facilities. His return to Malawi cannot be said to have a disproportionate affect on M's best interests.
27. It is not for this court to substitute its judgment for that of the Defendant. Such an outcome is not unlawful because irrational or unreasonable because another decision maker might have reached a different conclusion.

Ground 2-Supplementary Decision

28. The SSHD supplemented D1 almost a year later by a new decision on review in D2. There can be nothing irrational or unreasonable in such a course. The Claimant submits that it is "wrong in principle". If that submission was right then there would be no place for any supplementary decisions in the process. So long as there is an exchange of new and often, unfolding information, there must be a place for supplementary decisions. The power, or duty, to reconsider cannot be denied because it is said that there is "an inevitable bias towards upholding a decision which is impugned, because doing so may thereby win the litigation". It cannot be argued that all supplementary decisions are flawed because the decision maker will inevitably have a bias towards justifying their original decision.

Decision

29. Accordingly the process followed by the Defendant was not flawed and the reasoning applied was not irrational or unreasonable. The decisions taken together stand and this application is refused.