Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 151
P246/12	OPINION OF LORD DRUMMOND YOUNG in the petition of AAN Petitioner; for Judicial review of decisions of the Secretary of State for the Home Department dated 16 February 2012 and 20 March 2012 refusing to treat the petitioner's further submissions as a fresh claim ________________

Petitioner: Winter; Drummond Miller LLP

Respondent: Lindsay QC; Solicitor to the Advocate General

21 September 2012

[1] The background to the present application is as follows. The petitioner is from Malawi. He claims that his partner came to the United Kingdom in February 2005 in order to study. He states that he left Malawi in June 2006 and travelled to Ireland. After three months he came to the United Kingdom without entry clearance in order to join his partner. He returned to Ireland in January 2008 to continue studying. He claims to have made several trips to the United Kingdom in order to visit his partner and their daughter. In September 2008 he applied for a visa to visit the United Kingdom, but this was refused. In 2009 he returned to Malawi for a week and then came back to Ireland. In April 2010 he states that his cousin brought his two sons to Ireland to see him. Their mother is in Malawi and agreed that they could move to live with the petitioner.

[2] In June 2010 the petitioner and his sons came to the United Kingdom as his daughter, who was living with his partner, was ill. On 31 August 2010 he was encountered by immigration officials at his partner's home and was arrested. On 28 September 2010 he claimed asylum with his partner, their daughter and his two sons as dependants. That claim was refused on 1 November 2010. The petitioner appealed against that decision, but the appeal was dismissed on 24 December 2010. He applied for permission to appeal against that decision, and permission was granted on 2 February 2011. The appeal was considered before the Upper Tribunal, which dismissed it on 28 November 2011; the result was that the original determination by the Secretary of State was affirmed. Appeal rights were exhausted on 16 December 2011.

[3] Further submissions were made on 2 February 2012, in which the petitioner asked that they should be considered as a fresh application for asylum, humanitarian protection or discretionary leave to remain in the United Kingdom. On 16 February 2012 the Secretary of State refused to treat those submissions as a fresh claim. By a further letter dated 2 March 2012 the petitioner's solicitors lodged additional information in support of the earlier submissions. By letter dated 20 March 2012 the Secretary of State refused to treat those further submission's as a fresh claim. The petitioner now seeks judicial review of the Secretary of State's decisions of 16 February 2012 and 20 March 2012.

[4] In considering the petitioner's representations seeking leave to remain, the Secretary of State is obliged to follow rule 353 of the Immigration Rules, made under the Immigration Act 1971, sections 1(4) and 3(2). This provides as follows:

"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".

Under rule 353, the Secretary of State requires to consider three matters sequentially. First, she must consider whether in her view the representations in that the petitioner should now be granted leave to remain on refugee or human rights grounds are an exercise of discretion that the Secretary of State has to grant leave to remain to any person that she chooses. If that question is answered in the negative the Secretary of State must consider a second question: whether the submissions have been considered previously. In this connection it is irrelevant whether the new evidence or submissions were available previously, although that might affect their reliability. Thirdly, the Secretary of State must consider whether there is a "realistic prospect of success" in an appeal to the First-tier Tribunal (Immigration and Asylum Chamber). That is a low test: WM (DRC) v Secretary of State for the Home Department, [2006] EWCA Civ 1495; AK (Sri Lanka) v Secretary of State for the Home Department, [2009] EWCA Civ 447.

[5] At this point I should mention the role of the court in considering a challenge to a decision by the Secretary of State. It is now clear, at least in Scotland, that any challenge to the Secretary of State's decision proceeds on standard grounds for judicial review, including irrationality and unreasonableness in the sense that no reasonable person in the Secretary of State's position could have reached the decision that she did (Wednesbury unreasonableness): FO v Secretary of State for the Home Department, 2010 SLT 1087, at paragraph [23]; Dangol v Secretary of State for the Home Department, 2011 SC 560, at paragraphs [6]-[7]; WM (DRC) v Secretary of State for the Home Department, [2006] EWCA Civ 1495. Consequently the court must first consider whether the Secretary of State has asked the correct question, which is not whether the new claim should succeed but whether there is a realistic prospect that the First‑tier Tribunal, applying the rule of anxious scrutiny, might think that the applicant had a good case; and secondly, the court must consider whether the Secretary of State has answered in a proper manner. If these questions cannot both be answered in the affirmative, an application for judicial review must be granted. In certain English cases it has been held that, instead of proceeding on standard judicial review lines, the court should itself decide whether there is a realistic prospect of success, rather than applying the test of irrationality or Wednesbury unreasonableness, but that is clearly not the law in Scotland. The Scottish approach is in accordance with the ordinary law of judicial review.

The petitioner's letter of 2 February 2012 and the Secretary of State's response
[6] I now propose to set out the nature of the petitioner's further submissions and the Secretary of State's response to these. Although I deal with both sets of submissions separately, as will become clear at a later stage, I consider that they must be taken together in assessing the current position. First, the petitioner's letter of 2 February 2012 made representations to the effect that he, his partner and one of his sons suffer from HIV, and evidence was presented to suggest that a stigma will be attached to them in Malawi. The letter further stated that it would not be in the best interests of the children to return to Malawi; that applied in particular to the petitioner's daughter, who was born in the United Kingdom on 25 March 2008. It was further stated that it would be difficult for the petitioner at his partner to obtain employment and by doing so to care for the children. Various documents were enclosed.

[7] The Secretary of State responded to these representations by letter dated 16 February 2012. The part of this letter that is now challenged is that relating to article 8 of the European Convention on Human Rights, found at paragraphs 24-28. This passage begins by stating that full consideration was given to family and private life under article 8 at the earlier appeal, determined by the designated immigration judge on 24 December 2010; the judge had stated:

"With regard to Article 8 of the ECHR it is true that the appellant and his family have family life in the United Kingdom but if the appellant is returned to Malawi his partner, his sons and his daughter will be returned with him, as his dependants, so family life will not be disrupted".

The immigration judge had gone on to state that, while the appellant and his family had private lives in the United Kingdom, none of them had any right to be in the United Kingdom, and the appellant knew that when he started travelling from Ireland to the United Kingdom in 2006 and had then stayed in the United Kingdom. Likewise, his partner knew that she was not entitled to remain in the United Kingdom after her visit visa ran out. Neither of them had done anything about this, and thus they remained illegally in the country. The petitioner's sons came to the United Kingdom to visit and had overstayed. Consequently any private life had been created while the family had been here without legal rights. The appellant's two sons had only been at school in United Kingdom for about a month at the time of the decision, and the daughter was young enough to go to Malawi and integrate there. Furthermore, the appellant had shown disregard for the immigration laws of the United Kingdom. He had had false stamps put in his passport to make the authorities believe that he had returned to Malawi, and he had worked illegally in the United Kingdom.

[8] The Secretary of State's letter continued (at paragraph 26) by stating that it was considered that any friendships that the petitioner and his family had established could be continued from Malawi through telephone calls, letters and visits. The petitioner's sons had been United Kingdom for less than two years, and had attended primary school in Glasgow since 24 November 2010. Both were born in Malawi and had spent most of their lives there; their mother remained in Malawi. On that basis it was considered that it would be in the best interests of the petitioner's sons to return to Malawi with him and his partner. As to the petitioner's daughter, the letter stated (at paragraph 27) that she was three years old and was born in United Kingdom. She had been attending a nursery since 16 May 2011. It was considered that she was young enough to adapt to life in her country of nationality, especially as she would be returning along with her parents and half brothers who were all familiar with the customs and traditions of Malawi. It was considered that it would be in the best interests of the petitioner's daughter to return to Malawi with her family. Consequently (paragraph 28), the conclusion was reached that the immigration judge "would" find that any interference in the petitioner and his family's private life would be proportionate, and that there would be no breach of article 8 rights by his removal from the United Kingdom. Overall, it was decided not to reverse the decision on the earlier claim and it was determined that the further submissions did not amount to a fresh claim (paragraph 29).

The petitioner's letter of 2 March 2012 and the Secretary of State's response
[9] On 2 March 2012 the petitioner made further submissions and enclosed a number of additional documents for consideration. So far as the right to family life is concerned, the petitioner's letter of 2 March 2012 referred to the adverse impact on the health of the family if they were sent back to Malawi. The petitioner's daughter was born with a medical problem and had had successful heart surgery but was still being closely monitored by cardiologists in Scotland. One of his sons was found to be HIV positive and was being closely monitored to find suitable medication. The petitioner's partner had undergone a number of treatments for HIV, and it was not clear whether treatment would be available in Malawi.

[10] The Secretary of State responded in a letter dated 20 March 2012. After referring to certain of the authorities, including WM (DRC) v Secretary of State for the Home Department, supra, and AK (Sri Lanka) v Secretary of State for the Home Department, supra, the letter continued by indicating (at paragraph 13) that certain points raised in the new submissions had been considered when the earlier claim was determined. It was then stated:

"14. Your claim for asylum was based upon the assertion that you, your partner and one of your sons are HIV positive and would not be able to access treatment upon return to Malawi. It is also based on the assertion that your daughter would not be able to receive treatment for her heart condition. You have reiterated these issues in your new submissions. Full consideration regarding your return to Malawi, and that of your family, was given in the Reasons for Refusal Letter dated 28 October 2010 and in the appeal determination of 24 December 2010.

15. The Immigration Judge who reviewed your case, was fully aware of your family's health concerns, including your daughter's heart problems and the HIV status of your son. These matters therefore were fully examined and considered previously, whereby the Immigration Judge, citing objective information and the case of N, clearly concluded that removing you and your family to Malawi, would not have such a significant impact on your family's life expectancy, that it would breach the very high thresholds set in N. [Two letters dealing with the children's health] were submitted and considered in UKBA's refusal letter of 16/02/12 and it was concluded that these items, applying anxious scrutiny, did not create a realistic prospect of success under another Immigration Judge, taking into [account] the fact that the tribunal were [fully] aware of your family's health concerns. [As] such, [the two letters relating to the children's health] do not meet part (i) of immigration rule 353, as they are not significantly different from that already considered".

It was accepted that a further nine documents submitted with the letter of 2 March 2012 had not been previously considered. Nevertheless, it was not accepted that these would create a realistic prospect of success when taken together with the previously considered material (paragraph 16).

[11] At paragraph 18, the Section of State's letter referred to certain findings of the designated immigration judge in her opinion of 24 December 2010. These are as follows:

"It is true that the health service in Malawi is not as good as the health service in United Kingdom. This does not mean that the appellant should be allowed to stay in the United Kingdom. The objective evidence makes it clear that anti-retro viral therapy has been introduced in Malawi and the death rate among adults in rural Malawi has declined by 10% since the introduction of this therapy. In some places the death rate may have declined by up to 35%. Certain drugs are always available in Malawi, including [seven named drugs]. The COI service information also mentions drugs for other illnesses such as blood pressure, cholesterol, depression, problems with eyes etc.

It is clear therefore that there will be appropriate medical treatment available for the appellant, [the appellant's partner] and the appellant's oldest son and that there will also be treatment available for his daughter... if this is required. The Malawi Network of AIDS Service Organisations MANASO has been set up. This is involved in the generating and sharing of information in best practices, operation management etc. It is also responsible for the management of small grants and provides technical support and financial management.

There is voluntary counselling available and although it is clear that a large percentage of the population of Malawi has been diagnosed with HIV AIDS and children are also affected, it is clear that Malawi is dealing with these matters and that the health service is improving in the country.

I have taken into account the case of N v Secretary of State for the Home Department 2005 UKHL 31. This case makes it clear that where medical treatment is available in the appellant's country of origin, to return the appellant to that country although the treatment would not be of the same standard as the treatment being provided in United Kingdom, would not be a breach of Article 3 of ECHR. The appellant and his family are receiving treatment in the United Kingdom of the background evidence shows they will have access to treatment for their illnesses in Malawi".

The case cited, N v Secretary of State for the Home Department, subsequently confirmed by the European Court of Human Rights in N v UK, 27 May 2008, was concerned with article 3 of the European Convention on Human Rights, which is of course concerned with inhuman or degrading treatment. It makes it clear that the test for the application of article 3 to health issues in asylum cases is high. The main thrust of the petitioner's further submissions in the present case, however, is focused rather on article 8 and the right to family life. Nevertheless, it seems clear to me that the reference to this case by the immigration judge was not in any way fundamental to her decision; her fundamental finding was that adequate health services were available in Malawi. The legal position under article 8 was considered separately by the immigration judge.

[12] The Secretary of State's letter continues (paragraphs 19-33) by stating that the issue relating to HIV and the family's health conditions had been fully considered. Those paragraphs may be summarised as follows. The petitioner's letter had, however, submitted that his "vulnerable family" had been subject to "discrimination such as blanket restrictions of stay" due to their "health status, race, or colour". Documents produced with the petitioner's letter discussed the stigma attached to and discrimination towards people suffering from HIV. These were considered in the earlier decision letter of 16 February 2012 (where it was acknowledged that the stigma and discrimination associated with HIV and AIDS was universal, and that organisations were available to help those who were HIV positive in Malawi). A medical report with the petitioner's letter suggested that health care in Malawi was "clearly not as robust as it is in Scotland" but that the "immediate effects of removal of [the petitioner] to Malawi would be minimal from a medical point of view". In relation to the petitioner's partner, a separate medical report indicated that her compliance with antiretroviral therapy had been very poor, that she was resistant to two of the major drug groups, and that this unfortunately left her treatment options very limited, even in the United Kingdom. Non‑compliance was clearly a problem, and it was for the petitioner's partner to decide whether she wished to comply with treatment. That would not be affected by a return to Malawi. The medical report further suggested that the petitioner's partner required the availability of the newest antiretroviral agents, which would certainly not be available in Malawi. That assertion was simply not true. Reports available on the medical treatment available in Malawi made it clear that all antiretroviral agents were available at designated clinics in Malawi, and that special prescriptions were arranged in cases of resistance or non‑tolerance. This part of the letter concluded:

"30. The Medical Reports you have submitted have been fully considered, and the fact that your son and daughter are being monitored, and that your partner is on new ARV drugs, still does not merit a grant of humanitarian protection. [The doctor who submitted the medical reports] is medically qualified to provide his clinical expertise in the UK, but there is no indication that he has any authority to comment on availability of treatment in Malawi, nor has he been privy to the court proceedings, objective information and decisions completed by the immigration authorities. HIV/AIDs are managed well in Malawi and the objective information shows there is indeed treatment and support available for your family on return. As such, [the medical reports do] not create a realistic prospect of success applying anxious scrutiny under another Immigration Judge

...

33. Taking into account that there are organisations available to help those who are HIV positive, that there are health services available for you and your family, the IJ's previous findings and the case law of N, your submissions do not create a realistic prospect of success, under another Immigration Judge, applying anxious scrutiny".

[13] The Secretary of State's letter of 20 March 2012 goes on to consider the position under article 8 of the European Convention on Human Rights (paragraphs 34-38). The findings here were essentially the same as those in the earlier decision letter of 16 February 2012. Thereafter, however, specific consideration was given to the best interests of the children (paragraphs 39-53). This passage began by stating that, in the absence of detailed submissions in relation to the children, other than on their health, full consideration had been given to the best interests of the children. Reference was made to case law and then to the known circumstances of the children. These were sons aged 12 and eight and a daughter aged four; the sons were born in Malawi and the daughter in the United Kingdom. All three are nationals of Malawi. The sons arrived in the United Kingdom in April 2010; consequently it was clear that they had spent substantially more of their lives in Malawi than they had in the United Kingdom. The boys' mother was also in Malawi. In view of the daughter's age, she would not have formed a private life of any significance. At an interview the petitioner had stated that his children were upset at the prospect of leaving the United Kingdom. The writer of the Secretary of State's letter accordingly assumed, on that evidence, that the children's views on remaining in the United Kingdom coincided with their parents' views. It was accordingly considered that it would be in the best interests of the children to remain with their parents; consequently it could not be said that their removal would occasion an interference with the petitioner's family life in any way. In addition, removal of the family to Malawi would have the effect of reuniting them with their extended family members who still live there. Reference was made to the petitioner's father, five brothers and relatives by marriage. Further, there was no evidence that the children had become divorced from their culture while they had been in the United Kingdom for two years; it would be surprising if they were unaware of the culture, tradition and religion of their own country. It will also be surprising, given how long they had lived in Malawi, if he could not speak the languages that the petitioner and his partner spoke, English, Chichewe and Nkhonde. The daughter was young enough to adapt to the culture, language and community in Malawi.

[14] The latter then deals with education (at paragraph 47):

"There is no suggestion that children would not receive an education in Malawi. Indeed both the older children were of school age when they left Malawi (having only been in school for a month at the time the IJ dismissed your appeal). You and your partner... clearly have attained a good standard of education, and utilized this to further your studies here in the UK. There is no reason to suggest your children could not do this as well. The two boys have only been in Education in the UK for around a year and a half, and your youngest has not yet started her education as she is too young. Whilst the removal of your client's children may occasion a temporary disruption in their schooling it is not considered that this would amount to a disproportionate interference with their private lives".

The writer concluded (at paragraph 49) that it was not considered to be contrary to the best interests of the children to return to Malawi, or that their removal would be a disproportionate interference with the right to respect for their private lives. On that basis it was not considered that there was a realistic prospect that an immigration judge might come to a different conclusion. In addition to that, even if it were to be said that the best interests of the children were to remain in the United Kingdom, that was a primary consideration and not the only one. It was not considered that the best interests of the children on this occasion outweighed the need to maintain an effective form of immigration control. The private life of the petitioner and his family had been built up against the backdrop of an extremely precarious immigration status, and there had been no demonstrable delay in dealing with the claims made. The situation of the family was not significantly different from that already considered (paragraph 53), and on that basis there was no realistic prospect that an immigration judge might come to a different conclusion based on the new submissions.

The grounds of challenge to the Secretary of State's decisions
[15] The petition contained a range of grounds of challenge, not all of which were maintained in oral submissions. It was said first that the Secretary of State had failed to take proper account of the fact that the original claim made by the appellant had relied on article 3 of the European Convention on Human Rights, whereas the further submissions focused on article 8 of the Convention and the best interests of the children. Three more specific arguments were presented. First, it was submitted that in the first refusal letter in particular reliance was placed on the views of the immigration judge, but she had not had the advantage of any reference to two more recent cases, ZH (Tanzania) v Secretary of State for the Home Department, [2011] 2 AC 166, and MK (best interests of child) (India), [2011] UKUT 00475. Those cases were not referred to in the refusal letter. Neither the immigration judge nor the respondent treated the best interests of the children as the first stage and as a distinct stage of the exercise that was required. That was an error. Both the immigration judge and the Secretary of State ought to have considered the best interests of the children first and should thereafter have considered whether there were any countervailing factors. Furthermore, it was contended, the immigration judge had visited the actions of the petitioner and her husband on to the children in assessing what was in their best interests; that was an irrelevant consideration. Factors such as immigration control and the petitioner's and his partner's actions must not form part of the evaluation of the best interests of the children.

[16] Secondly, while the Secretary of State had considered the petitioner's children's health under article 3 of the European Convention on Human Rights and found that there would be no breach of that provision, it was contended that in considering the best interests of the children regard should be had to section 55 of the Borders, Citizenship and Immigration Act 2009, which imposes an obligation to safeguard and promote the welfare of children that includes preventing impairment of the development, including their physical, intellectual, emotional, social and behavioural development. Safeguarding and promoting the welfare of the children is not the same thing as asking whether the children's medical condition is so compelling as to justify a departure from the usual practice of removing. The factor had not, it was said, been taken into account by the immigration judge or the Secretary of State. Detailed reference was made to the COI report, and it was contended that the Secretary of State had not taken proper account of certain matters recorded there, notably the cost of anti‑retroviral drugs (said to be US $100 per month) as against per capita income (US $328 per month) and the stigma that attaches to HIV and AIDS in Malawi. Thirdly, it was contended that the Secretary of State had failed to take account of the general country conditions which the children face on return; in the light of those conditions, it could not be said to be in the children's best interests or overall well-being to be returned. It was recorded in the COI report that poverty continues to be chronic and widespread and that development was thwarted by limited arable land, food insecurity, natural disasters, malnutrition, HIV and AIDS, and a high incidence of malaria. It was further recorded that in one particular area a high proportion of pupils in primary schools experienced some form of violence, including sexual touching and abuse. There was a shortage of qualified teachers and instructional materials. Consequently the quality of education was very poor and pupil attainment levels were very low. Reference was further made to high rates of child mortality and widespread malnutrition and poverty.

Discussion
[17] At the outset I should make two general observations. First, it is clear that the two decision letters were intended to be complementary to each other; the second refers to the first. Consequently they must be read together to discover whether the best interests of the children were properly considered. Secondly, the decision letters were written in response to particular representations made by the petitioner or on his behalf. Indeed, the first question that must be asked is whether those representations raise any new material that was not considered by the immigration judge in the course of the previous hearing. Consequently, if a matter is not raised in the representations, expressly or impliedly, it is not necessary that it should be considered in detail by the Secretary of State in replying to the representations. In the light of those considerations, I will consider each of the submissions made on behalf of the petitioner.

[18] The first of these is that the issue of health had been considered by the immigration judge under article 3 of the Convention but the further submissions were presented under article 8 of the Convention and by reference to the best interests of the petitioner's children; in the latter connection, section 55 of the Borders, Citizenship and Immigration Act 2009 was mentioned. In considering this issue, I am of opinion that it is essential to look at the substance of the Secretary of State's decision letters rather than their form. If the claim made on the basis of the best interests of the children and article 8 was considered in substance, it is immaterial whether there is any particular reference to the statutory and other provisions, such as section 55 and policy guidance notes that may have a bearing on this matter. If that approach is adopted, I am of opinion that the questions of health and medical treatment were considered properly in the decision letters. It is true that some reference was made to article 3 and to the case of N, supra, which bears on the interpretation of article 3 and establishes that a high threshold must be crossed before that article is engaged in cases involving health. Nevertheless, I am of opinion that the references to article 3 and N are essentially incidental and do not bear on the substance of the Secretary of State's decision. The substance of the decision takes the form of a series of positive findings about the health care that will be available in Malawi, including medical treatment, counselling and support. Thus in the first decision letter the reference to N is found in a quotation from the immigration judge's decision (at paragraph 14 of the letter), and in that decision the reference is incidental, in that the Judge states that the case is an additional matter that she has taken into account. The same point applies to paragraph 18 of the second decision letter, where the same part of the Judge's decision is again quoted.

[19] The second decision letter has more substantial references to N. The first is found at paragraph 24 of the letter (see paragraph [12] above for the context), where there is a statement that the fact that services are not as robust in Malawi as in Scotland does not detract from previous findings that return did not meet the threshold set in N. At this point the writer is dealing with the medical report that had been obtained relating to the petitioner's condition. The substance of that report, together with the report on the petitioner's partner, is considered at paragraph 30, which is quoted above at paragraph [12]. The expertise of the doctor who provided those reports was held not to extend to the availability of treatment in Malawi. That is followed by a specific finding that HIV and AIDS are managed well in Malawi, the objective information showing that treatment and support were available. That positive finding seems to me to negate the previous reference to N. That case is referred to again at paragraph 31 of the decision letter, which is quoted in part at paragraph [12] above, but that paragraph does not detract in any way from the positive findings made in paragraph 30. I am accordingly of opinion that the references to article 3 and its attendant case law in the second decision letter are incidental to the letter's principal findings, which involve positive conclusions about the availability of health care in Malawi.

[20] In the second decision letter the question of the children's health is considered at length and in some detail at paragraphs 18-30. Positive findings are made about the quality of health care available in Malawi. This is in my opinion quite sufficient to meet the standard that is required in considering the best interests of children, whether under article 8 or under section 55 of the Borders, Citizenship and Immigration Act 2009. In relation to article 8, in ZH (Tanzania) v Secretary of State for the Home Department, supra, the issue of the "best interests of the child" is considered in the speech of Lady Hale at paragraph 29. It is there stated that the assessment involves asking whether it is reasonable to expect a child to live in another country. Factors relevant to this are the level of the child's integration in the United Kingdom and his or her length of absence from the other country; where and with whom the child is to live; the arrangements for looking after the child in the other country; and the strength of relationships with parents or other family members that will be severed if the child has to move from the United Kingdom. At paragraph 33 Lady Hale states that in making the proportionality assessment under article 8:

"The best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother's appalling immigration history and the precariousness of her position when family life was created. But, as the tribunal rightly pointed out, the children were not to be blamed for that".

A similar position is taken by Lord Hope at paragraph 44.

[21] ZH was commented on by the Upper Tribunal in MK (best interests of child) (India), supra, at paragraph 19, where it is pointed out that the issue of the best interests of the children must be addressed first and as a distinct stage of the inquiry. At paragraph 21 it is pointed out that that initial stage is not to be approached as a simplistic or reductionist exercise. Moreover, what is required is an overall assessment (paragraphs 23 and 24) in which a range of factors may be considered. It is clear from those cases that the best interests of the children must be considered on their own, separately from the other issues in the case. That involves an evaluative exercise, taking into account the various factors mentioned by Lady Hale at paragraph 29 of her opinion and any other matters that may seem to be relevant on the particular facts under consideration. On that basis, a decision must be made as to where the best interests of the children lie. Obviously, according to the strength or weakness of the various factors, that conclusion may be reached with greater or lesser force. Nevertheless, the best interests of the children are merely a primary consideration, not the paramount consideration, and certainly not the sole consideration. Once it has been determined where the best interests of the children lie, a second evaluative exercise is required, as described by Lady Hale at paragraph 33 of her opinion. This involves balancing the best interests of the children against other considerations, notably the need to maintain firm and fair immigration control. It is in this second evaluative exercise that the parents' immigration history may be relevant. The children are not to be blamed for the parent's poor immigration history; nevertheless, in the second balancing exercise that immigration history is a factor that can be taken into consideration.

[22] In the present case I am of opinion that a proper consideration of the interests of the children was carried out. This is done particularly in the second decision letter, which, as I have indicated, must be read along with the first letter. As I have mentioned, there is at paragraph 30 a positive finding that HIV and AIDS are managed well in Malawi and that treatment and support are available for the family. The best interests of the children are considered specifically at paragraphs 39-53. The circumstances of the children are discussed at length in that passage. It is found that it would be in the best interests of the children to remain with their parents, and that removal to Malawi would enable them to be reunited with members of their extended family (paragraph 45). The children were nationals of Malawi, and there was no evidence to suggest that any of them had become divorced from Malawian culture, especially the two older children. As to the youngest child, who had been born in the United Kingdom, at the age of four she was young enough to adapt to the culture, language and community in Malawi (paragraph 46). There was no suggestion that the children would not receive an education in Malawi, and the two boys had been at school there before they left (paragraph 47). The petitioner and his partner had clearly attained a good standard of education and gone on to further studies in the United Kingdom, and there was no reason to suggest that the children could not do this as well. This seems to me to be an important point; references to general or average educational standards in Malawi do not necessarily apply to the children of educated parents, who can be expected to obtain as good an education as their parents. A further advantage of return to Malawi would be that the boys could see their mother. Their cultural, religious and linguistic ties were with Malawi, and there was no reason to believe that the children could not readily adapt to living there (paragraph 48). The conclusion, reached at paragraph 49, is that it would not be contrary to the best interests of the children to return to Malawi. Alternatively, their removal would not involve a disproportionate interference with their right to respect for their private lives. On that basis the view was taken that there was no realistic prospect that an immigration judge might come to a different conclusion. I am of opinion that view was fully justified, and that there is no ground for holding that the first part of the evaluative exercise, that concerned with the best interests of the children, was not properly carried out.

[23] The second decision letter went on (at paragraph 50) to undertake the second evaluative exercise. It was stated that, even if it were to be said that the best interests of the children were to remain in the United Kingdom, that is a primary consideration, not the only consideration. It was not considered that the best interests of the children would on this occasion outweigh the need to maintain effective immigration control. Moreover, the private life of the petitioner and his family in United Kingdom was built up against the backdrop of extremely precarious immigration status. Thus, even if the first conclusion had been that it was in the best interests of the children to remain in the United Kingdom, their connection with the United Kingdom was relatively weak, and it did not outweigh the demands of immigration control. On that basis, there was not a realistic prospect that an immigration judge might come to a different conclusion based on the submissions provided by the petitioner. Once again, I am of opinion that that conclusion cannot be faulted. The second evaluative exercise was properly carried out, and it cannot be said that there is anything unreasonable or irrational about it, nor that irrelevant considerations were taken into account, nor that there was a failure to take account of any material consideration that had been placed before the Secretary of State.

[24] The second argument presented for the petitioner was, in summary, that there had been inadequate consideration of the children's health; in particular, a range of information relating to health care in Malawi had not been taken into account. This argument can most conveniently be taken with the petitioner's third argument, which was to similar effect but applied to education in Malawi and the widespread poverty that exists there. The first difficulty confronting both of these arguments is that the factors that are now relied on were not put specifically to the Secretary of State in either the application of 16 February 2012 or that of 20 March 2012. No doubt they are based on documents that were produced with the applications, but an applicant for asylum cannot merely produce voluminous documents without identifying the passages in those documents that are thought to be relevant to his position. Apart from the failure to identify the relevant documents, it is clear from the decision letters, especially the second, that detailed consideration was given to both the health services and the state of education in Malawi. Nothing was said in the petitioner's representations about poor education, or poverty, or the cost of antiretroviral drugs. In these circumstances, I am of opinion that the Secretary of State cannot be criticized for failing to take these matters into account in the decision letters; they were simply not raised by the petitioner. Had they been, a number of other factors might have been relevant. For example, it is clear that there is widespread poverty in Malawi, but it does not follow that the petitioner and his family would live in poverty; that depends much more on their own personal circumstances. Exactly the same point can be made about low educational levels, given the relatively high standard of education that the petitioner had evidently attained.

[25] In conclusion, I should note certain other matters that were raised by counsel for the petitioner. First, he referred to paragraph 28 of the first decision letter, where, in reaching a conclusion on article 8, the writer states that "an Immigration Judge would find that any interference in your client and his family's private life would be proportionate". That, it was said, was not the test that should have been addressed; the question was whether there was a realistic prospect of success in an appeal to the First‑tier Tribunal. In my opinion this criticism is misplaced. The wording of paragraph 28 could perhaps be improved, but it is clear that the opinion of the writer was that there was no realistic prospect that an immigration judge would come to a conclusion upholding the petitioner's contention. I have already held that conclusion to be justified. Secondly, counsel criticized the order in which the writer of the second decision letter considered the questions of the best interests of the children and the general balancing exercise, in which the best interests of the children were weighed up against other considerations. Counsel's point seemed to be that in the decision letter the best interests of the children were considered at a point subsequent to the discussion of many of the factors relevant to the general balancing exercise. In my opinion there is no merit in this point. The order in which the two issues are expressed is irrelevant: see FZ, [2012] CSOH 47, per Lady Clark of Calton at paragraph [31]. Clearly the best interests of the children must be weighed up and a decision reached before that factor can be considered in the general balancing exercise. That clearly happened in the present case, however; the writer of the second letter considered the best interests of the children in a passage concluding at paragraph 49, and then at paragraph 50 went on to weigh the best interests of the children against the need to maintain effective immigration control.

[26] For the foregoing reasons, I hold that the two decision letters were lawful and reasonable, and took relevant factors into account. They were in accordance with rule 353 of the Immigration Rules. The prayer of the petition is accordingly refused.