EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lady Dorrian Lord McGhie	[2012] CSIH 87 P1267/11 OPINION OF THE COURT delivered by LADY DORRIAN Reclaiming Motion in Petition of FZ Petitioner and Reclaimer; For Judicial Review against a Decision of the Secretary of State for the Home Department Respondent: _______________

Act: Winter; Drummond Miller WS

Alt: Webster; Office of the Advocate General

27^th November 2012

[1] This is a reclaiming motion from a decision of the Lord Ordinary dismissing the appellant's petition for Judicial Review of a decision of the Secretary of State refusing to treat the petitioner's submissions of 4 October 2011 as a fresh claim.

Background

[2] Although the substantive point in this case related to the importance of treating the welfare of the children as a separate and primary issue untainted by reference to the applicant's own immigration history, it is convenient to start by setting out the background in chronological order. This inevitably means starting with that history. For convenience the reclaimer and his wife will be referred to as "the parties". The reclaimer entered the UK illegally in May 2001 using a French passport which was not his own. He claimed asylum and was granted temporary admission. Meantime, the woman who later became his wife also entered the UK illegally, in July 2002, using a forged passport. She too claimed asylum. After various appeals, her claim was eventually dismissed in October 2003. The reclaimer's application was also dismissed in October 2003. The parties married in November 2003. Later that month, the reclaimer's wife submitted further representations based on an article 8 claim. In the meantime, the reclaimer lodged an appeal. The parties' son was born in April 2004. By November 2004 the reclaimer had exhausted his appeal rights. In January 2005 his wife's further submissions were rejected with no further right of appeal. In October 2005, she was detained along with her son and both were removed to the Congo. In the same month, the reclaimer was treated as an absconder. In March 2006 his wife and son re-entered the UK illegally, using passports and a resident permit that did not belong to them. His wife claimed asylum , citing the reclaimer and the son as dependents. That claim was refused, then made the subject of a reconsideration hearing before eventually being dismissed in July 2007. The reclaimer's rights of appeal were exhausted that same month. Further representations on his behalf (the subject matter of this reclaiming motion) were made in June 2010. The parties' third child was born in April 2011. Documents submitted with the further submissions showed that the elder two children were at school in the UK, that the reclaimer's wife was attending college and that they were members of a church in Glasgow. It was maintained that they should not be deported having regard to Article 8 ECHR and section 55 of the Borders, Citizenship and Immigration Act 2009.

The decision letter

[3] The Secretary of State, by letter dated 4 October 2011, declined to treat the further submissions as a fresh claim. She first dealt with the merits of the reclaimer's own article 8 claim. She then dealt separately with the article 8 rights of other family members. It was noted that there was both family life and private life established in the UK, but the only family ties were with each other, and the respondent did not consider that the family's return to the Congo would be "so detrimental on the friends you have made through school, church and the community as to impinge on their rights under article 8."

[4] The respondent recognised that she had to exercise her functions in a way that took account of the need to safeguard and promote the welfare of children in the UK, meaning that the best interests of such children were a primary consideration in the evaluation of the proportionality of a decision to remove the family from the UK.

[5] Addressing that issue she said:

"It is noted that you have not provided any information which pertains specifically to the best interests of your three children. A new Immigration Judge would conclude that although health care and education in the Congo may not be of the same standard as in the United Kingdom, the children's best interests will be to remain with their parents and raised in their own culture. Furthermore, if you return together there is no reason to believe that relocation to Congo would have a particularly detrimental effect on your children.

In conclusion, even taking into account the length of your residence in the United Kingdom, the ties that your family have built up whilst you have been here, through friendship and education, it is clear that the balance is struck in favour of your family's removal"

[6] She then went on to consider other factors such as the need to maintain effective immigration control, the reclaimer's immigration history and the fact that any family or private life was established when residence in the UK was precarious. In all, she considered that there was no realistic prospect of a new Immigration Judge finding that removal of the family would breach article 8 rights.

[7] The reclaimer brought a petition for judicial review, claiming that in assessing the best interests of the children, the respondent had given inadequate consideration to the country information regarding the educational system in the Congo, had given insufficient weight to the length of time the children had lived in the UK or the ties made during that period or to the fact that their participation in the UK educational system strongly pointed to their continued residence here as necessary for their best interests.

The Lord Ordinary's opinion

[8] In her opinion the Lord Ordinary made reference to the documents which had been submitted with the further submissions, noting that:

"None of these documents raise any issues about problems which the children might face if they are removed with the petitioner and his wife to the Congo to live there instead of the United Kingdom. The documents do have some limited information about the children particularly in relation to their schooling."

[9] On examining the respondent's letter she concluded that the respondent had considered the best interests of the children as a discrete issue, adding:

"In her consideration the respondent has taken into account general background information about the Congo (not supplied by the petitioner). The respondent concludes that education and health standards in the Congo may not be of the same standard as in the UK."

[10] In relation to the country information which was available to the respondent, the Lord Ordinary observed:

"It was not averred in the petition or presented in oral submission that this general background information was significant except as background information. No particular risks to the children of the petitioner were identified if they were returned to the Congo. I consider that it is a fair inference that the respondent in making reference to the education and health standards in the Congo had in mind such general information."

Although the assessment by the respondent was brief:

"... this is a case in which the information provided was brief. No issue was raised by the petitioner that the children would have some particular problems or adversity in the Congo if returned there with him and his wife."

The Lord Ordinary was satisfied that the respondent had regard to the totality of the length of time of residence in the UK.

Grounds of appeal

[11] The reclaimer advanced four grounds of appeal: that the Lord Ordinary had erred in concluding that the country information was not significant except as background information; that the Lord Ordinary erred in finding and relying on the fact that no particular risks to the children were identified were they to be removed from the United Kingdom to the Congo; that the Lord Ordinary erred in failing to take into account that weighty reasons would be required to justify separating a child from a community in which he or she has grown up and spent most of their life; and that the Lord Ordinary erred by finding that the children were at an age where parental association and care are very important.

Submissions

[12] We were favoured with detailed written submissions by both parties, which will only briefly be summarised here.

Reclaimer

[13] In advancing his first ground of appeal, the country background information on which the counsel sought to rely was information contained in the COIR of 2007, a US State Department report referred to therein and a US Department of Labour report of 2005, all of which had been referred to in the petition. Counsel did not seek to rely on those part of the extracts cited which related to street children, but submitted that there were other aspects of the information, specifically relating to education, which were relevant. These were that girls generally leave school by the age of 15 or 16, that there were some reports of teenage girls being pressurised to exchange sex for better grades, and that school infrastructure had been significantly damaged during the country's ongoing conflicts. He submitted that the impact of the information was that the educational system was inadequate and that there was sexual harassment against girls, who tended to drop out at earlier ages than boys. These were significant factors, in relation to the two younger children especially, which were not treated as such by either the respondent or the Lord Ordinary. Neither the respondent nor the Lord Ordinary had given adequate consideration to the fact that the educational welfare of the children as part of the UK educational system was a factor strongly pointing in favour of their continued residence in the UK.

[14] It was also necessary to have regard to the effect on children of short-term disruption of education as well as the longer-term effects of resettlement. The Lord Ordinary had been wrong to take into account that no particular risk to the children had been identified were they to go to the Congo. No such risk required to be identified, the question being one of identifying the best interests of the children. The Lord Ordinary had not recognised that weighty reasons were required to justify separating a child from a community in which he or she had grown up and lived for most of his or her life. She also erred in saying that the children (then aged 1, 5 and 8) were at an age where parental association and care was very important, standing authority to the effect that long residence after the age of four is likely to have a greater impact on a child.

Submissions for the respondent

[15] Counsel submitted that it was clear that the Lord Ordinary had recognised that the country information had significance but placed it in its proper context, in the absence of particular concerns raised by the reclaimer. There was no particular feature of the background information, other than its generality, which was relevant to the circumstances of the children. The respondent had regard to all material considerations and reached a view she was entitled to reach. She looked at the best interests of the children as a separate issue, untainted by criticism of the parents' immigration history. There were no concerns about the health of the children, no specific concerns about their education, neither they nor their parents were UK nationals or British citizens, and there was no question of the family being separated. There was no prospect of a new Immigration Judge reaching a different decision.

Authorities

[16] In argument the following cases were referred t: ZH (Tanzania) v SSHD [2011] 2 AC 166; LD (Zimbabwe) v SSHD [2011] Imm AR 99; E-A (Nigeria) v SSHD [2011] UKUT 315; and MK (India) v SSHD [2011] UKUT 475; Tologiwa v SSHD [2012] EWHC 2386 (Admin).

Discussion and decision

[17] In ZH (Tanzania) v SSHD [2011] 2 AC 166 it was recognised that in reaching a deportation decision which might affect a child, a primacy of importance was to be accorded to the best interests of that child. It does not need to be addressed before anything else, but it must be awarded a primacy of consideration: H v Lord Advocate 2012 SLT 799. It is important that the best interests of the child are assessed as a discrete issue, in a consideration untainted by concerns about any unsatisfactory immigration history or criminal conduct of a parent. It is worth noting that in the present case it is not suggested that the respondent failed to identify the correct test. Nor is it suggested that she took into account factors which were liable to "taint" her assessment in this way, such as the immigration history: rather what is suggested is that she failed adequately to give regard to all the relevant factors.

[18] In assessing the best interests of these children, it is clear that the respondent had in mind the fact that the oldest child, at least, had a private life in this country and would have established ties through schooling and church, since this was the first thing which she addressed when considering their article 8 rights. A fair interpretation of what the respondent said at page 7 of her letter was that, in assessing overall the best interests of the children, she took into account that it would be in their best interests to be with their parents; that their Nationality was Congolese and that it would be in their best interests to be brought up within that culture; that educational facilities were an important factor in the assessment of best interests, and that the facilities in the UK would be better than those in the Congo, but that, in the absence of reliance on particular factors, the fact that the children would be returned along with their parents meant that the effect of the difference in educational opportunities between the UK and the Congo would not be particularly detrimental to them. It is not being suggested, by the respondent or the Lord Ordinary, that one needs to identify a risk particular to a given child before such background information would be relevant, although the presence or absence of such a risk would itself be relevant. Where there is no such particular factor, one has to consider the context in which the children would be engaging with the new educational system. In that regard the respondent's observation that there was no reason to think this would be particularly detrimental if the family returned together needs to be seen in context. That context- as shown by the material placed before the respondent in the further submissions - was that of a strong family unit, where the parents were highly educated: the father was a vet and the mother was undergoing tertiary education. They appeared, with the exception of their immigration history, to be law abiding, and were church goers. These are all protective factors in the background in which the children would be relocating to the Congo and dealing with any difficulties inherent in the system there.

[19] Moreover, it is important that such difficulties are not overestimated or taken out of context. As counsel for the respondents pointed out, the country information about educational opportunities in the Congo is not all one way. That information also points out that the government there is committed to protecting the rights and welfare of children, that education is compulsory, tuition-free and universal to the age of 16. There is information to suggest that in the cities 95% of school-age children attended school, and 90% in rural areas. Girls and boys attend primary school in equal numbers, and although the proportion of girls in higher or university level education is lower, opportunities for this do exist.

[20] In our view, the respondent did not ignore any relevant factor and was entitled to take into account all the factors which she did take into account. Nationality is not any sort of "trump card" but it is a relevant and important factor to take into account (ZH (Tanzania), Lady Hale, para 30). In E-A (Nigeria) [2011] UKUT 315, para 35, it was a relevant consideration that the children had no connection with the UK by nationality or any other nexus independent of their residence as part of their parents' household. As to the length of their residence in this country, as was noted in E-A (Nigeria), para 39:

"...the reason why a period of substantial residence as a child may become a weighty consideration in the balance of competing considerations is that in the course of such time roots are put down, personal identities are developed, friendships are formed and links are made with the community outside the family unit. The degree to which these elements of private life are forged and therefore the weight to be given to the passage of time will depend upon the facts in each case."

In relation to the children in E-A, the court said, para 40

"... whilst they have been in the UK for a considerable period of time, the nature and degree of private life that they have forged is such that it is still of a very personal, intra-family nature in the main, with the focus on the home and family, although they have begun to take their first tentative steps toward socialisation and the world outside the family."

[21] The same can be said of the children in the present case, and the Lord Ordinary's observation that they were still of an age where parental association and care were very important is entirely apposite. In light of their ages and the limited information provided we cannot see that there was any error in the way this matter was addressed by the respondent nor did the Lord Ordinary err in so holding. The reclaiming motion will be dismissed.