Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 172

P192/12

OPINION OF LORD STEWART in the Petition of S M Petitioner; for Judicial Review of a decision by the United Kingdom Border Agency on behalf of the Secretary of State for the Home Department dated 26 February 2012 in terms of the Nationality, Immigration and Asylum Act 2002 s. 94(2) certifying that the petitioner's claim was clearly unfounded and Answers for The Secretary of State for the Home Department Respondent: ________________

Petitioner: Gibson, advocate; Drummond Miller LLP

Respondent: MacGregor; Office of the Solicitor for the Advocate General

7^th November 2012

[1] This case is about a 39-year old, South African, male visa overstayer who has been in the United Kingdom for over nine years. He is the petitioner. He wants to remain, maybe to settle, in the United Kingdom; and he claims that he should be allowed to do so on human rights grounds. The United Kingdom Border Agency [UKBA] acting for the respondent minister takes the opposite view. The issue in these proceedings as I understand it is not so much about whether the petitioner ought to be allowed to remain but whether he should be allowed to stay pending an appeal against the decision that he should be removed. I heard submissions on 27 June 2012 and made avizandum. Having considered the points made by counsel and the documents and authorities to which they referred me I have decided that this is a petition that must be refused.

Background

[2] The petitioner was born in Rhodesia [Zimbabwe] of British descent on 2 April 1973. His step-father was a high-ranking officer in the Rhodesian army. When Zimbabwe became independent in 1981 the family fled to South Africa and were given South African citizenship. After leaving school the petitioner trained and worked in South Africa as a recording and stage sound technician. In September 2003, at the age of 30, the petitioner entered the United Kingdom on a six-month visa. He claims that his passport was stolen within months of arrival. He lived in London initially. He lived in Wales for eight months in 2007 and then moved to Edinburgh where he has lived ever since. His claim, as now presented, depends on the accumulation of a private life in Edinburgh.

[3] The petitioner came to the attention of the authorities in July 2011 when he was reported by his girlfriend N S after an argument. He was granted temporary admission subject to weekly reporting to the police. On 10 February 2012 he was detained and accommodated at Dungavel Immigration Removal Centre. On that date the petitioner was served with directions for his removal from the United Kingdom to South Africa on 23 February 2012. The petitioner made an application for judicial review of the decision to remove him. The presentation of the application resulted in the non-enforcement of the removal directions. The petitioner also, by letter dated 21 February 2012 from his solicitors, made "fresh representations" to UKBA for leave to remain on human rights grounds, viz. European Convention on Human Rights [ECHR] art. 8 (right to respect for private and family life). By letter dated 26 February 2012 UKBA refused the petitioner's ECHR art. 8 application and further certified in terms of the Nationality, Immigration and Asylum Act 2002 s. 94(2) that the petitioner's human rights claim was "clearly unfounded". The effect of "clearly unfounded" certification is to deny the petitioner an in-country appeal to an immigration judge in the First-tier Tribunal (Immigration and Asylum Chamber). Fresh removal directions were served on 27 February 2012, using "NOT appealable" form IS.151D, with removal set for 2 March 2012. The petitioner lodged a fresh application for judicial review - this petition - which resulted in the removal directions again not being enforced. The petition is directed at the "clearly unfounded" certification decision.

Legislation and case law
[4] As a rule "immigration decisions", such as the determination of the petitioner's human rights claim which resulted in refusing him leave to remain and the decision to remove him, can be appealed to an immigration judge in terms of section 82(1) of the Nationality, Immigration and Asylum Act 2002. However, section 92 of the 2002 Act restricts the right to appeal from within the United Kingdom; and section 94 provides:

"(1) This section applies to an appeal under section 82(1) where the applicant has made an asylum claim or a human rights claim (or both).

[...]

(2) A person may not bring an appeal to which this section applies if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded."

In terms of section 113(1), the interpretation section, a "human rights claim" is a claim to the effect that removing a claimant from, or requiring him or her to leave, the United Kingdom would be contrary to the claimant's ECHR rights insofar as incorporated by the Human Rights Act 1998. If a human rights claimant is entitled to live in one of the so-called "white list" states specified in section 94(4), section 94(3) obliges the Secretary of State to certify the failed claim as "clearly unfounded" unless satisfied that it is "not clearly unfounded". South Africa is one of the white-list states. If the petitioner were removed to South Africa, he could, if I understand counsel for the respondent correctly, bring an out-of-country appeal in terms of subsection (9) and section 95. He could in any event apply for entry clearance to come back to the United Kingdom.

[5] A claim is "clearly unfounded" if it is "bound to fail". The question raised by this application is whether the UKBA officer who made the decision of 26 Feb ruary 2012 properly decided, bearing in mind the subsection (3) presumption, that the petitioner's human rights claim was "bound to fail". The words "bound to fail" envisage a claim that has no prospect of succeeding before an immigration judge properly directed as to the law and properly instructed as to the facts assuming the most favourable interpretation from the applicant's point of view. There is equivocation in the jurisprudence as to how the court should review "bound to fail" decisions: is the issue of the straight yes-or-no kind, to which there is only one correct answer; or does it allow for a margin of judgment and a reasonable difference of opinion? If the latter, reviewing courts can only strike down decisions that are flawed on Wednesbury principles of review; and then matters have to go back to UKBA for re-determination. If the former, reviewing courts can adjudicate the merits of these claims for themselves.

[6] The official Home Office line, according to counsel for the respondent, is that the correct approach is the one followed by, for example, Lord Bannatyne in AMC, that is Wednesbury-type review; and counsel then, I thought paradoxically, told me that the quality of the decision letter is not in point and that I can put the UKBA reasoning to one side because "what matters is the outcome", namely whether the claim is bound to fail or not. Counsel for the petitioner on the other hand majors on a claimed flaw in the decision-making process and argues for a re-determination by UKBA. A way of reconciling these approaches is to say that, although there are decision-making errors by UKBA, any decision-making errors are immaterial because the correct result was achieved and a re-determination would inevitably come to the same conclusion - which is what the submission of counsel for the respondent amounts to. Accordingly, counsel for the respondent opposes a remit for determination of new by UKBA [FNG v Secretary of State for the Home Department 2009 SC 373 at § 14; ZT (Kosovo) v Secretary for the Home Department [2009] 1 WLR 348 at §§ 21-23 per Lord Phillips of Worth Matravers, at §§ 52-53, per Lord Hope of Craighead (concurring and dissenting); AMC Petitioner [2011] CSOH 155 at §§ 56-65].

[7] Counsel agree that the merits of ECHR art. 8 claims have to be tested by reference to Lord Bingham's five-point Razgar checklist as subsequently refined [Razgar v Secretary of State for the Home Department [2004] 2 AC 368 at §§ 16-20 per Lord Bingham of Cornhill; Huang v Secretary of State for the Home Department [2007] 2 AC 167 at § 20 per Lord Bingham of Cornhill giving the opinion of the appellate committee]. In Razgar at paragraph 20, Lord Bingham stated:

"Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."

The Huang refinement emphasises that exceptionality is not a qualitative test but a quantitative assessment of the number of cases likely to succeed on ECHR art. 8 grounds. The appearance in the lexicon of the term "exceptional" owes something to the Strasbourg judgments in three ECHR art. 3 cases; and the language of those judgments may owe something in turn to the fact that in the United Kingdom cases the issue was about the application of the Secretary of State's "exceptional leave" policy [D v United Kingdom (30240/96) (1997) 24 EHRR 423; Ben Said v United Kingdom (44599/98) (2001) 33 EHRR 10; Henao v Netherlands (13669/03) 24 June 2003 ECtHR; Razgar v Secretary of State for the Home Department [2004] 2 AC 368 at §§ 4 and 6 per Lord Bingham of Cornhill, at §§ 30 and 40 per Lord Walker of Gestingthorpe, at § 72 per Baroness Hale of Richmond; see also R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 and R (Ekinci) v Secretary of State for the Home Department [2004] Imm AR 15].

The issue between parties
[8] There is some lack of clarity in the UKBA decision in the present case as to whether checklist points one and two should be answered in the petitioner's favour: but, like the decision-maker and counsel for the respondent, I am prepared to approach matters on the hypothesis that removal to South Africa would interfere with the petitioner's private life and that such interference would be more than technical. It is not contested that the removal would be "in accordance with law" in the sense that it would be implemented in accordance with legal rules. That is point three. The live issue is said to be around points four and five, namely whether the proposed interference with the petitioner's article 8 rights is necessary and proportionate for the legitimate public aim of maintaining effective immigration control [KBO v Secretary of State for the Home Department [2009] CSIH 30 at § 13 per Lord Reed delivering the opinion of the Court; Nnyanzi v United Kingdom (2008) 47 EHRR 461 at § 76].

[9] The proportionality assessment involves balancing the claimant's ECHR art. 8 rights against the public interest in removing him in furtherance of a legitimate state aim. In the present case, the petitioner's main complaint is that, in striking the proportionality balance, the UKBA decision-maker has left out of account the petitioner's contribution to the community, specifically to the music scene in Edinburgh of which, according to fifteen letters of support submitted to UKBA, he is a valued member. Contribution to the community can be a relevant consideration [UE (Nigeria) and others v Secretary of State for the Home Department [2012] 1 WLR 127].

[9] Counsel for the respondent conceded that value to the community is capable in principle of weighing in the balance when determining the public interest in removing an ECHR art. 8 claimant: but the claimant must be practically irreplaceable or the contribution must be of very significant value. Counsel advanced a number of other propositions by reference to authority. It is trite law that ECHR art. 8 does not entail a general obligation to respect migrants' choice of their country of residence. What ECHR art. 8 claimants have to justify is the privilege of being allowed to remain without abiding by the rules that apply to everyone else. Only a very small minority of illegals and overstayers will be entitled to succeed on ECHR art. 8 grounds. The fact that presence in the host country is precarious dilutes the effect of any ECHR art. 8 rights. There is no reward simply for otherwise staying out of trouble while illegally present or unlawfully resident. The weight to be attached to relevant interests is entirely a matter for the Secretary of State's decision-makers. An assessment of proportionality which takes account of all relevant, and only of relevant considerations is a matter of judgment and is not, unless perverse, amenable to review [Reg v IAT Ex p Singh [1986] 1 WLR 910 at 917C-E and 920D-F per Lord Bridge of Harwich with whom the other members of the appellate committee agreed; Konstantinov v Netherlands [2007] FCR 195; Huang v Secretary of State for the Home Department [2007] 2 AC 167 at §§ 18 and 20 per Lord Bingham of Cornhill giving the opinion of the appellate committee; UE (Nigeria) and others v Secretary of State for the Home Department [2012] 1 WLR 127 at §§ 19, 21, 23, 29, 32, 36 per Sir David Keene, at §§ 38-45 per Richards LJ; Nnyanzi v United Kingdom (2008) 47 EHRR 461 at § 76; MH v Secretary of State for the Home Department at §§ 11, 47-49, 62; RQK Petitioner [2011] CSOH 199 at §§ 21-25].

The UKBA decision of 26 February 2012
[10] The UKBA decision of 26 February 2012 has to be read with the "fresh representations" letter from the petitioner's solicitors dated 21 February 2012. The letter claims in the second sentence that the petitioner "has a right to his private and family life in the United Kingdom". The family life aspect, such as it is, appears to be the petitioner's quasi-connubial but non-cohabiting relationship with a British citizen named N S. The letter goes on to say:

"It is clear that [S M] falls within the criteria set by your office in relation to the implementation of the Grand Chamber case of Ruiz Zambrano. He is a third country national upon whom a British citizen adult is emotionally dependent.

"[N S] will be devastated if [S M] is returned to South Africa and it would be disproportionate and unreasonable for her to relocate there as she would have to withdraw from university prior to conclusion of her studies. [S M]'s removal to South Africa is a clear breach of his ECHR Article 8 rights."

The reference to Ruiz Zambrano is misconceived. That decision is a judgment of the European Court of Justice not a judgment of the Grand Chamber of the European Court of Human Rights. It is a decision on the application of the Treaty on the Functioning of the European Union [FEU] arts. 20 and 21. The strict ratio is that FEU art. 20 precludes a European Union member state from refusing residence to a third country national parent on whom a resident child with citizenship is dependent. The UKBA decision letter indicates that UKBA is prepared to apply the Zambrano principle to relationships of dependency generally: but the decision-maker did not accept that N S's dependence on the petitioner was of a quality or degree such as to attract Zambrano treatment. This is apparently accepted by the petitioner. Counsel for the petitioner told me that the "family life" component of the petitioner's ECHR art. 8 claim is no longer insisted on [Ruiz Zambrano v Office National de l'Emploi (ONEm) (C-34/09) [2012] QB 26; see also JYZ (China) v Secretary of State for the Home Department [2012] CSOH 78; cf. Beoku-Betts v Secretary of State for the Home Department [2008] 3 WLR 166].

[11] There is no need to consider "family life" further except to say that I agree with counsel for the respondent that the UKBA decision-maker cannot be faulted for focusing - as he did - on the ostensible "family relationship" with N S. I think it fair to emphasise that the only explicit reference to the impact on third-parties of the petitioner's removal is the reference to the impact on N S. The treatment given in the solicitors' letter to other contacts and relationships is as follows:

"[S M] ... has been volunteering in the Forest Café while living in Edinburgh. He has built up many close friendships and relationships in the United Kingdom."

The letter ends by saying: "This document and its enclosures are to be treated as fresh representations under Paragraph 353 of the Immigration Rules". The nature of the enclosures is not specified: but clearly the UKBA decision-maker has looked at the enclosures because the decision letter refers, correctly, to, among other things, "several letters of support from friends". In addition to the letter from N S there are fourteen letters of support.

[12] These letters describe the petitioner's character and his contribution to the Edinburgh music scene in highly favourable terms. Phrases used include the following: "a very positive person in our community"; "would be a great asset to my country and its people"; "he could bring even more goodness, creativeness and inspiration for younger generations in impoverished areas"; "has enhanced the lives of so many people"; "can make a positive contribution to the lives of these socially deprived young people... has made and would continue to make a significant impact to some many [sic] people's lives"; "I believe he has made a significant contribution [to the local community]"; "one of the key persons involved in the community centre...always helping young sound engineers and bands"; "an absolute asset to the community"; "a pivotal part of the local music scene"; "thousands of people [S M] has helped...one of the loveliest and most talented and giving people we know"; "he is an asset to the community and will be sorely missed"; "a great asset to the local music and cultural community". The petitioner's work is said to have been undertaken on a voluntary and charitable basis. Notwithstanding the quarrel that led to N S reporting the petitioner, there is, at least on a favourable view of matters, a continuing relationship between the petitioner and N S which is also available to weigh in the "private life" scales. Counsel for the petitioner makes the fair point that as a South African of British descent the petitioner has had and will have no difficulty in achieving social integration in the United Kingdom.

[13] There are references, I think three general references, to the petitioner's friendships in the decision letter. On the basis of these references counsel for the respondent suggested that the decision-maker had taken account of the letters of support in deciding the private life issue and that his decision was not open to review. I do not entirely agree. Yes, I am prepared to accept that the decision-maker has taken account of the letters of support but only insofar as they evidence friendships as part of the petitioner's "private life": what the decision-maker has not done is to consider the letters as evidence of the petitioner's contribution to the community. Agreeing then, as I do, with counsel for the petitioner to that extent, I have to decide whether or not the decision ought to be set aside on Wednesbury principles, specifically on the basis that a relevant factor has been left out of account.

Discussion and decision
[14] Indisputably, as the petitioner's claim was presented to UKBA, the decision-maker was not entitled to be "satisfied that it is not clearly unfounded"; and since the destination-state, South Africa, is on the white list, the decision-maker was bound to certify the claim as unfounded. The white list presumption does not make obvious sense where the threatened harm lies in being removed from the host state, as with "domestic" ECHR art. 8 claims, rather than in being removed to the state of origin, as with "foreign" ECHR arts. 2 and 3 claims: but if a relevant factor has been left out of account in the decision-making then the question whether the claim is or is not well-founded becomes an open one again; and, as the claim is now formulated on the authority of UE (Nigeria), a potentially relevant factor has been left out of account by the UKBA decision-maker [cf. ZT (Kosovo) v Secretary for the Home Department [2009] 1 WLR 348 at § 22 per Lord Phillips of Worth Matravers].

[15] In support of his submission about the legal significance of the petitioner's circle of friends and contacts in the community, counsel for the petitioner founds on the dictum: "Human beings are social animals..." [Note of Argument § 32; Huang v Secretary of State for the Home Department [2007] 2 AC 167 at § 18 per Lord Bingham of Cornhill giving the opinion of the appellate committee]. As originally expressed in ancient Greece, the proposition supports not the idea of individual rights in opposition to the state but the idea of the state as the necessary context for individual fulfilment. This way of thinking has persisted and continues to be influential. In terms of ECHR art. 8(2), interference by the state with private and family life rights is prohibited except where "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." By these words, ECHR art. 8(2) recognises the necessary role of the state in upholding a democratic society. Indeed ECHR art. 8(2) can be read as listing - albeit that the matter is expressed in a negative way - the core functions, even duties to its citizens, of the good state. "Border control" as such is missing from the list of public interest justifications for interference with ECHR art. 8 rights. A possible inference is that the Convention does not accord the right to enjoy family or private lives to persons who have no right to live in the state in the first place [cf. Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471; Huang v Secretary of State for the Home Department [2007] 2 AC 167 at § 7 per Lord Bingham of Cornhill giving the opinion of the appellate committee]. An alternative view is that border control comes within one of the listed public interest justifications - but which one? This issue has been superseded to an extent by the Strasbourg court's untroubled acceptance in Nnyanzi, cited by counsel for the respondent, that "effective immigration control" is in and of itself an ECHR art. 8(2) public interest justification. The petitioner accepts this [Nnyanzi v United Kingdom (2008) 47 EHRR 461 at §§ H16, 71, 76; Note of Argument § 26].

[13] The usual proportionality balancing exercise opposes the private interest in non-removal to the public interest in removal. The petitioner's argument moves beyond this and entails that there is, as well, a public interest in non-removal that qualifies or diminishes the public interest in removal. Counsel for the petitioner founded particularly on the judgment of Sir David Keene in UE (Nigeria), an ECHR art. 8 case. At paragraph 24 his Lordship stated:

"... as a matter of principle, I can see no reason why the fact that the community in this country or part of it would lose something of value were these claimants to be removed should be seen as irrelevant to an assessment of the extent of the public interest in removal."

At paragraph 34 his Lordship concluded:

"...the loss of such public benefit is capable of being a relevant consideration when assessing the public interest side of proportionality under article 8 and as a matter of principle I do so find. That is where this aspect comes in to the proportionality balancing exercise."

Richards LJ gave cautious acceptance to the proposition that contribution to the community can somehow play a part in the assessment of proportionality while expressing the view that it is not "an independent consideration in its own right". Both judges thought that taking account of community benefit would probably make no difference to the outcome though neither judge was absolutely certain: on that basis the claimants' appeals from the decision of the Asylum and Immigration Tribunal were allowed. In a two sentence judgment Ward LJ, presiding, agreed that the matter should be remitted for a re-determination without expressing a preference as between the approaches of Sir David Keene and Richards LJ [UE (Nigeria) and others v Secretary of State for the Home Department [2012] 1 WLR 127 at §§ 24-34 per Sir David Keene, at §§ 38-45 per Richards LJ, at § 46 per Ward LJ].

[14] I am not sure that I find UE (Nigeria) entirely convincing. Sir David Keene's judgment drew substantially on the pre-ECHR-incorporation decision of the House of Lords in Bakhtaur Singh. Bakhtaur Singh concerned the application of the then current immigration rules to what was at that time, in terms of the Immigration Act 1971, a discretionary decision as to whether an overstayer should be deported. The rules explicitly required decision-makers to take into account "every relevant factor" and "all relevant circumstances"; and the examples given in Bakhtaur Singh of contributions to the community capable of constituting relevant circumstances might be regarded as fantastical if applied nowadays to illegals and overstayers, who have no right to work. In the petitioner's case, he is liable to removal as an overstayer in terms of the Immigration and Asylum Act 1999 s.10. However, I think it prudent to proceed on the basis that UE (Nigeria) is good law. In particular I assume that Sir David Keene's interpretation, which is the most favourable from the petitioner's point of view, is good law or at least was good law under the immigration regime then obtaining [Reg v IAT Ex p Singh [1986] 1 WLR 910 at 917C-F per Lord Bridge of Harwich with whom the other members of the appellate committee agreed; R(L) v Secretary of State for the Home Department [2003] 1 WLR 1230 § 57; FNG v Secretary of State for the Home Department 2009 SC 373 at § 14; ZT (Kosovo) v Secretary for the Home Department [2009] 1 WLR 348 at § 22 per Lord Phillips of Worth Matravers, at § 52 per Lord Hope of Craighead]. That being the assumed law, I now have to consider whether the UKBA decision-maker's apparent failure to take account of the letters of support as evidence of the petitioner's contribution to the community requires the matter to be re-determined.

[15] Before going on to consider whether a re-determination might lead to a different result I have to mention two other points that were touched on by counsel. The first is "anxious scrutiny". The petition avers that the decision-maker has failed to apply anxious scrutiny and that in so failing the decision-maker was irrational. In oral submissions counsel for the petitioner referred to the case of Kishor Dangol. The decision in Kishor Dangol assumed, without deciding, that the requirement of anxious scrutiny applies to cases where the issue is the proportionality of the impact of removal on private life [Dangol (AP) v Secretary of State of for the Home Department 2011 SLT 645 at § 9 per Lord Bonomy delivering the opinion of the Court]. Counsel for the petitioner has not persuaded me that anxious scrutiny is necessary in the present case and I have not applied it. This is not an extreme risk case; counsel did not suggest that it could make a difference to apply anxious scrutiny; and I do not think that anxious scrutiny in this type of case adds to the agreed test, which involves looking at the material in the way most favourable to the petitioner.

[16] Secondly, there was an inconclusive discussion by counsel on both sides as to the nature of the apprehended "interference" with the petitioner's right to respect for his private life. Counsel for the petitioner seemed to assume that the interference consists in refusing the petitioner leave to remain. Counsel for the respondent pointed out that the petition seeks review only of the certification decision and not of the refusal of the human rights claim. (This is correct: in these proceedings the petitioner does not challenge the decision to refuse his human rights claim, it may be on the view that an as-yet unexhausted remedy is available to him in the statutory appeal process). On that basis, counsel for the respondent submitted that the interference consists in denying the petitioner access to the immigration appeals system from within the United Kingdom. I am prepared to understand the apprehended interference to be the petitioner's removal from the United Kingdom pending his appeal against the refusal of his human rights claim and, or alternatively, his application for clearance to re-enter, in accordance with the rules, from South Africa. In the event that an appeal or application for entry clearance is successful the removal will be temporary. If they are unsuccessful the petitioner has no basis for complaint. That is the interference against which the proportionality of removing him has to be measured. Counsel for the petitioner does not make the radical submission that the United Kingdom is unjustified in disposing of unmeritorious immigration claims administratively without a right of appeal from within the state.

[16] As to re-entry, in the present case the UKBA decision-maker did not accept that the petitioner's "family life" claim entitled the petitioner to benefit from the rule in Chikwamba. The ECHR art. 8 issue in Chikwamba was whether it was proportionate to remove Mrs Chikwamba with her four-year-old child to Zimbabwe from where she could apply for entry clearance to re-join her husband in the United Kingdom. Expressed at its broadest the rule in Chikwamba is that it is disproportionate to remove persons who have "every prospect of succeeding in an application [made in the country of origin]...for permission to re-enter and remain [in the United Kingdom]". Since the petitioner's case is no longer a "family life" case, for the broad Chikwamba ratio to apply, the petitioner has to demonstrate some equivalent prospect of re-entry on another basis, in terms of, for example, the Tier 2 points-based system for skilled workers. The petitioner in the present case has made no attempt to do so [Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 1420 especially at § 6 per Lord Scott of Foscote].

[17] As to the question of an appeal to an immigration judge - and this is about taking account of all relevant factors - there is in my view no prospect of success. Worthy and valuable to the community though the petitioner's enforced voluntary work may have been during his precarious and unlawful residence, it counts for nothing in the situation where the petitioner now seeks leave to remain lawfully with the opportunity to put his skills to remunerative use. There is no suggestion, and I do not think I am bound to assume, that the petitioner would be practically irreplaceable if he were to charge for his services. The examples given by Lord Bridge of Harwich in Bakhtaur Singh were about individuals who had been practically indispensable in lawful business or lawful employment and who would continue to be indispensable in their various lawful occupations if not deported. Lord Bridge doubted that "any considerable weight" could be attached to services provided during a period of unlawful residence. I conclude that though the decision-maker has failed to take account of something which appears from the decision in UE (Nigeria) to be a relevant, though not a weighty, consideration, there is no chance that factoring in community benefit on the basis of past unlawful residence would change the outcome in the circumstances of this case [Reg v IAT Ex p Singh [1986] 1 WLR 910 at 917C-F and 920E per Lord Bridge of Harwich with whom the other members of the appellate committee agreed].

[18] My conclusion, on the material that was before the UKBA decision-maker and on the basis of the submissions made on 27 June 2012, is that the decision-maker has made an error of law but that this is one of the cases in which it can be said that the error is of no materiality and that there is no need for a re-determination [Dangol (AP) v Secretary of State of for the Home Department 2011 SLT 645 at § 7 per Lord Bonomy delivering the opinion of the Court]. I also note - though this cannot be part of my decision because it was not the subject of submissions - that any re-determination would now be governed by the new "private life" rules, 276ADE-276DH, which, as I understand it, would inevitably mean that the petitioner's application fails. In the result, I shall repel the petitioner's plea in law, repel the respondent's first plea-in-law as superseded and sustain the respondent's second plea-in-law with the effect of refusing the petition. All questions of expenses are reserved. This is the conclusion I have reached doing my best to apply the law. What is written here should not be taken to reflect adversely on the petitioner as an individual and I hope that his story has a happy ending.