Act: Devlin; Drummond Miller LLP

Alt: Webster; Solicitor to the Office of the Advocate General for Scotland

16 March 2011

Background

[1] Like so many applicants in cases before this court relating to immigration issues, the reclaimer has been in Scotland for a considerable period of time during which a number of applications to stay in the country have been dealt with by the respondent. Such cases often involve claims for asylum in which it is said that the applicant would face a grave risk of serious harm were the applicant to be returned to the country of origin. This reclaimer, however, does not anticipate any threat of harm were he to be returned to his country of origin. His claim to be allowed to remain in the United Kingdom is based on his contention that over the period of eleven and a half years that he has been here he has built up such a strong private life here that his removal from the United Kingdom would breach his right under Article 8 of the European Convention on Human Rights to have his private life respected and only interefered with to the extent that is lawful and necessary.

[2] The particular decision in issue in this petition is that of the respondent dated 12 December 2008 refusing to treat representations made on behalf of the reclaimer as a fresh claim for permission to remain. The reclaimer's immigration history is set out in that letter in the following terms:

"Your client arrived in the UK on 27 August 1999 and was granted leave to enter as a work permit holder until 5 September 1999 however, he failed to leave the United Kingdom (UK) and did not come to light until he was encountered working illegally by Immigration officers on 13 October 2001 at Amritsar Restaurant in Kirkcaldy. He was served with illegal entry papers and only then did he decide to claim Asylum on 17 October 2001.

This claim was refused on 07 August 2002 and he appealed against this decision. The appeal was dismissed on 07 March 2003 and he was denied permission to appeal this decision on 15 April 2003. He then became Appeal Rights Exhausted on 1 May 2003.

Subsequently, an application for leave to remain as a student was submitted on behalf of your client on 23 March 2004 however, this was refused on 19 March 2005.

On 2 October 2005 your client was encountered again working illegally at Amritsar Restaurant when he was arrested and detained. On 4 October 2005 your client made a fresh Asylum submission which was refused as further representations on 26 October 2005. Removal directions were then set for 4 November 2005 and as a consequence an application for Judicial Review (J.R.) was lodged by your client on 28/10/05. Removal Directions were cancelled on 1 November 2005 and he was released on bail on 5/11/05.

On 12 December 2005 permission to proceed to paper hearing for the J.R was refused. On 30/03/06 further representations were lodged asking for the J.R to proceed to an oral hearing and on 05 April 2006 the oral hearing was adjourned. On 22 September 2006 your client was advised that his representations amounted to a fresh Asylum claim. The claim was refused on 12 April 2007 and his appeal dismissed on 31 May 2007. He then became Appeal Rights exhausted again on 24 July 2007.

Subsequently, your client was encountered working illegally at Amritsar Restaurant for the 3^rd time by Immigration Officers.

On 11 January 2008 and 07 February 2008 further representations were lodged on your client's behalf when his representatives sought a 'Legacy Review' of this case. On 28 March 2008 these representations were refused and your client was advised that his case failed to provide any sufficiently compelling or compassionate circumstances to justify allowing him to remain in the UK outside of the Immigration rules.

On 02 June 2008 your client applied to the IOM for assistance to return to Nepal advising that he intended returning in September however, he failed to follow up his interest and the offer of assistance was withdrawn on 06 October 2008."

[3] The further representations which became the subject matter of the decision letter of 12 December 2008 were made on 19 November 2008 and are summarised in the petition as follows:

"The gravamen of those representations was that over the 9 years the Petitioner had been in the United Kingdom (and in respect of only the initial 2 years of which the Petitioner had not been in regular contact with the Immigration Authorities), he had built up a sufficiently strong private life in the United Kingdom to make his removal from the United Kingdom disproportionate and in breach of Article 8 ECHR. The representations submitted in support of that application were extensive, and were designed to seek to demonstrate the extent to which the Petitioner had become embedded in Scottish society. The representations including many personal references, a petition to the Scottish Parliament, evidence of his educational qualifications and of his involvement in a great many societies and organisations was produced to the Secretary of State. The Secretary of State was already aware that the petitioner also had a record of employment, albeit that was not employment he had been authorised to take, but it was nonetheless relevant to his private life in the United Kingdom."

The Law

[4] These submissions fell to be considered under Immigration Rule 353 which is in the following terms:

"When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."

[5] It was common ground that under this rule the respondent has first of all to consider the submissions themselves and reach a decision on them. Only if they are rejected does the respondent require to proceed to the second stage and address the issues referred to in paragraphs (i) and (ii) of the Rule. It was also common ground that the first stage of that exercise had been duly completed, the decision letter stating specifically that "the contents of your representations have been carefully considered but for the reasons given below we are satisfied that your client's removal does not breach the European Convention on Human Rights." The debate before us centred on whether the decision letter demonstrated that the respondent had carried out the second stage properly.

[6] Before turning to the submissions for the parties on that question, it is appropriate to say something about the proper approach by the court to challenges based on failure to comply with Rule 353. Counsel for both parties were particularly anxious that we should address what they saw as a conflict between an evolving approach to such challenges in the courts of England and Wales, which had been echoed in certain decisions in the Outer House, on the one hand, and the approach approved by the Inner House and thus binding on judges of the Outer House, on the other. The point is most clearly highlighted in the opinion of Lord Tyre in IM (AP) v Secretary of State for the Home Department [2010] CSOH 103. Having recorded parties' agreement that the case should be dealt with along traditional judicial review lines whereby, should an error be identified, the case would generally be remitted for reconsideration by the original decision maker, as explained by Buxton LJ in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, [2007] Imm AR 337 at paragraphs 8 to 11 and adopted in the decision of the Second Division in FO, Petitioner [2010] CSIH 16, [2010] SLT 1087 at paragraph 23, Lord Tyre decided that that approach required to be modified to reflect the opinions expressed in recent decisions of the House of Lords, Supreme Court and the Court of Appeal, in particular ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, [2009] 1 WLR 348 and R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116, [2010] 4 All ER 448 at paragraph 10. He took the view that, in light of these opinions, the appropriate course would generally be for the reviewing judge to address and decide the substantive question whether there was a realistic prospect of an immigration judge finding in favour of the applicant. The analysis proceeds on the basis that that question may be seen to be susceptible of only an affirmative answer unless the application can be said to be "bound to fail" or to be "clearly unfounded". To remit the matter for further consideration would thus be pointless. Lord Tyre relied particularly on the analysis of Carnwath LJ in R (YH), founding on the opinion expressed by Longmore LJ (with the agreement of his colleagues) in KH (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1354, when he said:

"It is now clear from ZT (Kosovo) v SSHD...that the court must make up its own mind on the question whether there is a realistic prospect that an immigration judge, applying the rule of anxious scrutiny, might think that the applicant will be exposed to a breach of Article 3 or 8 if he is returned to Afghanistan. So the question is not whether the Secretary of State was entitled to conclude that an appeal would be hopeless but whether, in the view of the court, there would be a realistic prospect of success before an adjudicator."

Lord Tyre chose to adopt that approach, which he said appeared "to be consistent with the approach taken recently by Lady Dorrian in LA, Petitioner [2010] CSOH 83 at paragraph 14 and by Lord Doherty in SY, Petitioner [2010] CSOH 89 at paragraphs 14 to 15 (both Rule 353 cases) and by Lord Malcolm in JS, Petitioner [2010] CSOH 75 at paragraph 30 (a certification case)." Since then a similar approach has been taken by Lord Hodge in TN, Petitioner [2011] CSOH 35. While counsel before us came fully prepared to debate this issue, it was not even hinted at in the grounds of appeal or notes of argument submitted in advance of the hearing. Even if we were to find the submissions in favour of the Carnwath LJ approach persuasive, we would have to consider the competency and propriety of departing from the clear statement of the proper approach as a matter of law set out in FO (AP), Petitioner [2010] CSIH 16, always bearing in mind that the court had on that occasion not been addressed on the authorities relied upon in Lord Tyre's opinion.

[7] We considered that these were issues which ought to be addressed only if it emerged that that was necessary for the proper determination of this case. We resolved that, in that event, the parties should have further time to present written submissions supplemented by further oral argument. For the reasons we set out later, that has not proved to be necessary. Should a party in any future case wish to submit, in reliance upon R (YH) and other cases, that the judicial approach to determination of petitions for judicial review similar to the present should not be as set out in FO (AP), then that question will require to be addressed in the Inner House, possibly by a full bench. Unless and until that happens we take this opportunity to remind judges sitting at first instance that the appropriate approach is that set out in the section of the FO (AP) opinion clearly headed "The Law" as follows:

"As far as the role of the court is concerned, guidance is to be found in the judgment of Buxton LJ in WM (DRC), who having discussed the judgment of the court in Onibiyo, continued:

'[10]  ...Whilst, therefore, the decision remains that of the Secretary of State, and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny. Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters.

[11]  First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return:  ...The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of state making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusion to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision.' "

That is a clear and binding statement of the procedure that generally ought to be followed. There will no doubt be cases, as in other fields of judicial review, in which it is appropriate for the matter in issue to be determined by the reviewing judge rather than remitted to the original decision maker. However, for the moment they remain the exception rather than the rule.

The Merits

[8] Although Mr Devlin for the reclaimer sought to persuade us that the respondent had determined the matter on the basis of the respondent's own view of the merits and had failed to apply anxious scrutiny to the reclaimer's case, his principal submission came to be the more modest one that the decision letter was so muddled, both in its narrative of the sequence in which issues for determination had been addressed and its reference to the points taken into account, that it was neither possible to conclude that the respondent had applied anxious scrutiny to the factors bearing upon the proportionality of ordering the removal of the reclaimer, nor possible to divine that the respondent's decision that the application for reconsideration had no realistic prospect of success was based on an objective assessment of the prospects before any immigration judge. He had a subsidiary point in relation to delay.

[9] It is convenient to address first the question whether the decision letter demonstrates the application of anxious scrutiny in the consideration of the reclaimer's case. We assume, for the purposes of this case, that the requirement of anxious scrutiny applies to cases where the issue is the proportionality of the impact of removal on private life. In this branch of his argument Mr Devlin relied particularly upon what was said by Carnwath LJ in R (YH) at paragraph 24 about what is necessary to demonstrate that "anxious scrutiny" has been applied to consideration of material. There he said:

"...the expression in itself is uninformative. ...However it has by usage acquired special significance as underlining the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account."

Translating that into practice in the present case means that the decision letter should demonstrate that no material factor that could conceivably be regarded as favourable to the reclaimer has been left out of account in the review of the evidence.

[10] It was Mr Devlin's submission that the muddled format and content of the decision letter disclosed muddled thinking on the part of the respondent. The letter appeared to indicate that the respondent had based the final conclusion that there was no realistic prospect of success exclusively on a personal assessment of the material, and that even then the respondent had done no more than go through the motions. It did not demonstrate that the analysis described in the speech of Lord Bingham of Cornhill in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368 at paragraph 17, of addressing five questions, had been followed. In particular it did not appear from the letter that the fifth question, whether interference with the reclaimer's private life by removing him from the country would be proportionate to the necessary legitimate public end of a firm and orderly immigration policy, had been addressed at all. There was no indication of the careful assessment of the severity and consequences of the interference desiderated at paragraph 20. Under reference to UE (Nigeria) and Others v Secretary of State for the Home Department [2010] EWCA Civ 975 at paragraphs 29 and 39 to 43, it was submitted that specific regard should have been had, in the exercise of assessing the proportionality of removal, to the contribution the reclaimer was making and would make to the broader community. That was a particular example of the absence in the decision letter of clear statements of the detailed facts relating to the reclaimer's personal life on which the respondent proceeded. The material facts should be explored with care - Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167 at paragraph 15.

[11] We have no hesitation in agreeing with the Lord Ordinary, as was submitted by Mr Webster, counsel for the respondent, that it is clear from the decision letter what factors were taken into account and that they were relevant factors. The Lord Ordinary identified in particular the legitimate aim of maintaining effective immigration control, the immigration history of the reclaimer, the previous decisions of immigration judges, the extent of the private life exhibited by the reclaimer, the evidence of his integration into the local community now provided, and the large network of friends and support he had shown. We find there to be no substance in the suggestion that the respondent's failure to discuss in more detail the nature and extent of the private life enjoyed by the reclaimer in the United Kingdom meant that it could not be said that the respondent had applied anxious scrutiny to the assessment of the extent of that private life. The decision letter is clear in indicating not only that each of the factors mentioned earlier in this paragraph was taken into account but also that the full substance of the additional material submitted to indicate the nature of the reclaimer's life in Scotland, listed in paragraph 1 of the letter, was weighed in the balance. We are satisfied from both the form and content of the decision letter that proper regard was had to all factors favourable to the reclaimer's application and that the requirement for anxious scrutiny was met.

[12] We are not persuaded that demonstrating that proper account has been taken of all material information presented about the nature of the reclaimer's personal life in Scotland requires the decision maker to enumerate every feature considered and elaborate upon the consideration given to it. What matters is whether the decision letter makes clear that all potentially favourable material factors have been taken into account in the context of reviewing all the material, old and new, bearing upon the reclaimer's personal life. The decision letter indicates that that was the case. It is plain from the letter that the respondent took into account all the material presented on behalf of the reclaimer, and was particularly conscious of the import of the material contained in the letter of 19 November 2008 which initiated this latest reconsideration of his position.

[13] We turn now to the second issue, i.e. whether the decision letter demonstrated that the correct question was addressed in the proper way when the respondent concluded that there was no realistic prospect that reconsideration of the reclaimer's application to be allowed to remain in the United Kingdom in light of the additional material presented would lead to his application being granted. In addition to what he described as the "muddled and confused" format of the decision letter which he maintained reflected mainly the personal views of the author rather than an objective conclusion as to the prospect of a fresh application succeeding, Mr Devlin pointed also to what he submitted was a lack of clarity as to whether the respondent considered that Article 8 of the Convention was even "engaged" by the reclaimer's circumstances. He also maintained that the respondent's reliance on his agreement with the decision of the previous adjudicator emphasised that his own personal view was of the essence of the final conclusion.

[14] Mr Webster invited us to concentrate attention on the content rather than the format of the letter and, under reference particularly to the terms of the first two thirds of page 3 of 4 of that letter, submitted that it was clear how the respondent had reached the ultimate decision. It could not be said on a fair reading of the decision letter that the respondent had not done as was clearly stated in the letter, namely decided whether there was a reasonable prospect that an immigration judge would decide in favour of the reclaimer.

[15] In our opinion the decision letter of 12 December 2008 demonstrates clearly that the respondent, having considered the representations made on behalf of the reclaimer in the letter of 19 November 2008 and all its enclosures submitted on behalf of the reclaimer, arrived at the determination that the removal of the reclaimer from the United Kingdom would not breach the European Convention on Human Rights. It is clear from the language used in the letter that that, the respondent's own, view of the merits of the application was used as a starting point in considering whether there was a realistic prospect of success. The respondent's letter then embarked upon an explanation of the reasons for arriving at that determination, which are of course relevant not only to the question of the respondent's own view of the application but also to the respondent's assessment of the prospects that an immigration judge might take a different view. Having identified proportionality as the touchstone, the respondent pointed out that two successive adjudicators had rejected the application and, having taken account of that and also considered the "evidence of integration into the local community your client has now provided", found that removal would not be a breach of Article 8. The decision letter noted at that point specifically:

"The large network of friends and support your client has shown is not sufficiently compelling enough to warrant allowing him leave to remain in the UK."

In explanation of that, the respondent went on to refer to the periods of his life that the reclaimer had spent in the UK and in Nepal, his qualifications and skills and the use to which they could be put in Nepal, and his immigration history, before concluding that there would be no realistic prospect of an immigration judge, properly directing himself, coming to a different view on proportionality. In our opinion these passages of the letter indicate clearly that the respondent addressed the correct questions in the correct order and, having rejected the application, addressed and answered the question whether there was any realistic prospect of an immigration judge making a different decision.

[16] Mr Devlin founded upon the two sentences following upon that conclusion where the letter continued as follows:

"It is therefore considered that these actions are proportionate responses having regard to the need to maintain an effective immigration control. For these reasons it is not considered that your client's removal from the United Kingdom would be in breach of Article 8."

These sentences indicated, it was argued, that even at that stage the question being addressed was the respondent's personal determination on the application. We disagree. The first sentence simply identifies what the removal is to be proportionate to, namely the need to maintain effective immigration control. The second states the conclusion that Article 8 would not be breached. While these sentences are not expressed in the most felicitous language, we consider it significant that they are expressed in the passive voice. We do not read them as indicating confusion in the mind of the writer as to whether the question being addressed was the prospect of an immigration judge deciding in favour of the reclaimer rather than the personal determination of the application by the respondent. In any event the matter is put beyond doubt by the remainder of the decision letter. It addresses the separate question of whether the reclaimer was entitled to have his case reviewed in light of a Parliamentary announcement in July 2006 and indicates that that review had already taken place. Thereafter the final paragraph of the letter is in these terms:

"In summary, I therefore conclude that your client's submissions, taken together with the material previously considered would not create a realistic prospect of success before a new Immigration Judge when applying the rule of anxious scrutiny."

[17] In his submissions in support of the reclaimer's case on the fourth ground of appeal relating to delay, Mr Devlin founded on only one aspect of the case set out in the fourth ground of appeal and note of argument in support thereof, namely that the delay was the result of a dysfunctional system and that therefore the weight otherwise to be accorded to the requirements of firm and fair immigration control should be reduced. Reference was made to EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, [2009] 1 AC 1159 at paragraphs 16, 27, 32. This submission was founded solely on the evidence of the treatment of the reclaimer's fresh asylum application made on 4 October 2005. We have narrated the history above. We accept the submission of Mr Webster that the treatment of that application, rather than demonstrating dysfunctionality, simply reflected the system working fairly and effectively. The history of that application demonstrated that the respondent was willing to acknowledge a mistake and have an application reconsidered. One might be critical of the time taken, but the delay involved is not in our opinion evidence of a dysfunctional system which ought to be reflected in more generous treatment of the circumstances and interests of the reclaimer in the assessment of the proportionality of the proposed removal. We accordingly find no basis in the fourth ground of appeal for reviewing the decision.

[18] For these various reasons we shall refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary dismissing the petition.