Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 42
P1098/11	OPINION OF LORD BANNATYNE in the Petition of D.E.F.K. (A.P.) Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: for Judicial Review of a decision of the Secretary of State dated 29 July 2011 ­­­­­­­­­­­­­­­­­________________

Petitioner: Gibson; Drummond Miller LLP

Respondent: McIlvride; Office of the Advocate General

8 March 2012

Introduction

[1] The petitioner is a citizen of Cameroon. He seeks reduction of a decision made by the Secretary of State dated 29 July 2011 refusing to recognise representations as a fresh claim for asylum.

Immigration history

[2] The petitioner claimed asylum on 22 January 2007 and that claim was refused on 19 February 2007. He appealed and his appeal was dismissed as significant elements of his account were not regarded by the Immigration Judge as being credible. He applied to the Asylum and Immigration Tribunal for permission to appeal against the dismissal of his claim and the Tribunal refused this application on 3 September 2009. The petitioner thereafter applied to this court for leave to appeal. This application was refused on 24 February 2010. He became appeal rights exhausted on 8 April 2010. He submitted further representations on that day; the Secretary of State decided on 29 April 2010 that his further submissions, when taken together with the previously considered material, did not amount to a fresh claim for asylum; and that the petitioner sought to challenge that decision by petition for judicial review. His petition was refused by interlocutor dated 1 February 2011. The interlocutor was pronounced following a First Hearing before the Lord Ordinary. On 10 March 2011 the petitioner was detained and was served with directions for his removal to Cameroon on 14 March 2011. On 10 and 11 March 2011 further submissions were made on behalf of the petitioner. Those submissions were brief and were lacking in detail, and the Secretary of State did not accept that they resulted in a fresh claim for asylum. The petitioner presented a further petition for judicial review of that decision. Further submissions were made on the petitioner's behalf and as a result of said further submissions having been made the petitioner's second petition for judicial review was dismissed. On 29 July 2011 the Secretary of State decided that the petitioner's further submissions had not resulted in a fresh claim for asylum. The agreed applicable law

[3] Rule 353 of the Immigration Rules provides:

"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."

[4] It was not disputed by counsel that the law which fell to be applied in a judicial review where representations said to amount to a fresh claim had been refused was to be found in the case of Dangol v Secretary of State for the Home Department 2011 SC 560 in which the court had adopted the following well known passage from the Opinion of Buxton LJ in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495:

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

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

The submissions on behalf of the petitioner

[5] Counsel began his submissions by drawing my attention to the conclusions of the Secretary of State regarding the existence of private life and family life of the petitioner in the decision letter of 29 July 2011. The Secretary of State had concluded that the relationship between the petitioner, Ms M and her son (by a prior relationship) constituted part of these persons private life. However she had secondly concluded that the petitioner did not have a family life with Ms M and her son.

[6] Counsel conceded that the conclusion arrived at by the Secretary of State that the petitioner, Ms M and her son do not have a family life was one which was open to the Secretary of State. However, he contended that the opposite conclusion would be open to an Immigration Judge (who was not being perverse). The argument developed by counsel, as I understand it, did not seek to suggest that the Secretary of State in approaching her task in terms of Rule 353 had asked herself the wrong question. As I understand it, counsel accepted that the Secretary of State had asked herself the question as laid down by Buxton LJ quoted earlier. Rather the thrust of the detailed arguments advanced was that the Secretary of State in various respects when asking herself that question had taken account of irrelevant matters; left out of account relevant matters; and proceeded on a flawed basis due to misapplying the relevant substantive law. It was argued that there was a realistic prospect of an Immigration Judge who had not fallen into such errors coming to a different conclusion to that arrived at by the Secretary of State. This general submission was developed in terms of a number of detailed grounds of challenge to the rationality and reasonableness of the decision letter. Each of these grounds of challenge involved a detailed textual analysis of the decision letter.

Detailed grounds of challenge

1. The Secretary of State at paragraph 25 indicated that the documents provided did not establish a four year relationship between the petitioner and Ms M. It was contended that in so finding she had failed to have regard to the statements from the petitioner and Ms M that they had had a four year relationship. It was submitted that this was a factor which could be accepted by an Immigration Judge and cause him to come to a different conclusion on the existence of family life. The Secretary of State had accordingly failed to consider a relevant matter.

2. It was submitted that the Secretary of State had wrongly held it to be a prerequisite of establishing family life that the petitioner and Ms M resided together. This submission was founded on the following section in paragraph 25 of the decision letter:

"It is noted your client and Ms M do not reside together, which they state is due to the fact that Ms M believes it would be morally wrong. The absence of cohabitation, notwithstanding the evidence that the relationship is a close (and this includes any relationship with Ms M's son) is considered to point to the relationship not being one that involves family life but plainly comes within the scope of your client's private life."

It was argued under reference to the following authorities: K v United Kingdom (1986) 50 DR 199 at 207; Somerfeld v Germany (Application No. 31871/96) and Kroon and others v The Netherlands (1995) 19 EHRR 263 at paragraph 30 that in order for family life to be established it was not necessary for it to be established that there was cohabitation between the parties.

It was submitted that an Immigration Judge could accordingly accept that non-cohabitation was not a bar to the establishment of family life and that this could cause him to come to a different conclusion on the existence of family life. The Secretary of State had accordingly failed to consider a relevant matter.

3. The third argument was to an extent connected to the second and was to this effect: that although it was accepted on behalf of the petitioner that the lack of co-habitation between him and Ms M was a factor which might militate against the establishment of family life, nevertheless other factors could establish the necessary constancy to create de facto family ties.

[7] In support of this argument he referred me to Kroon v Netherlands at paragraph 30 where the Court observed:

"30. Throughout the domestic proceedings it was assumed by all concerned, including the registrar of birth, deaths and marriages, that the relationship in question constituted "family life" and that Article 8 was applicable; this was also accepted by the Netherlands courts.

In any case, the Court recalls that the notion of "family life" in Article 8 is not confined solely to marriage based relationships and may encompass other de facto "family ties" where parties are living together outside marriage (see as the most recent authority, the Keegan v Ireland judgment of 26 May 1994, Series A no. 290, pp 17-18, para. 44). Although, as a rule, living together may be a requirement for such a relationship, exceptionally other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto "family ties", such is the case here, as since 1987 four children have been born to Mrs Kroon and Mr Zerrouk.

A child born of such a relationship is ipso jure part of that "family unit" from the moment of its birth and by the very fact of it (see the Keegan judgment, ibid). There thus exists between Samir and Mr Zerrouk a bond amounting to family life, whatever the contribution of the latter to his son's care and upbringing.

Article 8 is therefore applicable."

[8] The other factors relied on by the petitioner in the absence of cohabitation in order to establish family life were: Ms M having suffered three miscarriages, the length of the relationship between the petitioner and Ms M and the petitioner's relationship with her son.

[9] It was contended that these were factors which the Secretary of State had failed to have regard to.

[10] It was submitted that these were factors which could be accepted by an Immigration Judge and cause him to come to a different conclusion on the existence of family life. The Secretary of State had accordingly failed to consider a relevant matter.

4. Counsel's next argument was that the Secretary of State had failed when concluding the petitioner's relationship with Ms M's son did not amount to family life to consider the matter from the perspective of the child. Counsel in particular founded on what he submitted was the Secretary of State's failure to take into account that the child was relatively young, he had had a relationship with the petitioner for a very significant proportion of his life; he referred to him as dad; and the child was regarded by those who met him as being the petitioner's child.

[11] It was submitted that these were factors which could be accepted by an Immigration Judge and cause him to come to a different conclusion on the existence of family life. The Secretary of State had accordingly failed to consider a relevant matter.

5. The fifth argument was a very short and sharp point and was made under reference to paragraph 32 of the decision letter where the Secretary of State said the following:

"You have not demonstrated that your client is an "exceptional case"."

[12] It was argued that this passage showed that the Secretary of State's approach to the issue before her was fundamentally wrong in that she had reversed the onus. It was not for the petitioner to establish that he fell into the class of an exceptional case and her decision was thus irrational.

6. Counsel's sixth argument was to the effect that the petitioner asserted family life and the Secretary of State accepted that he had established a private life. It followed that these factors would constitute a barrier to his establishing a family and or private life elsewhere. It was contended that the Secretary of State had failed to take this into account when considering whether he could establish a family or private life elsewhere. It was thus argued that the decision of the Secretary of State was irrational.

7. Counsel then directed my attention to paragraph 43 where the Secretary of State adopted an esto position and asked herself what decision would an Immigration Judge have come to, if unlike the Secretary of State, he accepted that the petitioner had established both family and private life in this country. She went on to hold that even in those circumstances she believed that there was no realistic prospect of an Immigration Judge coming to the view that the petitioner would be exposed to a real risk of persecution or treatment contravening Article 8 of the ECHR if returned to his home country. It was argued that in carrying out this exercise the Secretary of State had failed to consider what value or weight might be given to family life by the Immigration Judge and therefore had failed to consider a material matter.

8. It was next argued under reference to paragraphs 37 and 38 of the decision letter where the Secretary of State considers the case of Chikwamba v Secretary of State for the Home Department 2008 1 WLR 1420 that she had failed to properly apply the dicta of that case in that in analysing the case of Chikwamba the Secretary of State had failed to take account of the following factors: the poor immigration history of Miss Chikwamba; that in the Chikwamba case both parties were aware of Miss Chikwamba's precarious immigration status; that Miss Chikwamba succeeded in her case despite her own poor immigration history and that Miss Chikwamba had made a claim for asylum that had been rejected on credibility grounds. It was submitted in not having regard to these factors the Secretary of State had wrongly distinguished the case of Chikwamba from the petitioner's case and her decision was thus irrational. It was his submission that on a proper understanding of Chikwamba it was only those who had used false identities, and repeatedly absconded or had absconded for lengthy periods or had committed immigration offences sufficiently serious as to bring about prosecution that could not benefit from the dicta in Chikwamba.

[13] The next four grounds of challenge were made under reference to paragraph 38 of the decision letter.

9. The ninth ground of challenge was based on the Secretary of State observing as follows:

"If it is truly the intention of Ms M and your client to marry at some point in the future..."

[14] It was submitted that by so stating the Secretary of State was calling into question the intention of the parties. It was submitted that this was relevant in that if the couple did intend to marry their family or private life would be given greater weight than if they did not. It was further contended that the petitioner was left without a clear indication of whether the Secretary of State accepted that the couple did or did not intend to marry and therefore could not know the factors the Secretary of State had taken account of in deciding that removal was not disproportionate and that an Immigration Judge could not reach a contrary conclusion. Counsel's position was that the Secretary of State had failed to provide adequate reasons on this matter and her decision was therefore irrational.

10. Immediately following the above challenged section the Secretary of State turned to consider the processing time for entry clearance applications by the British Embassy in Yaounde, Cameroon. In relation to this issue the Secretary of State noted:

"Your client would be able at that point to apply for entry clearance either as a spouse or as a fiancé. It is noted that at present 100% of visa applications for settlement are currently decided in 90 days by the British Embassy in Yaounde. Any separation therefore might not be permanent but temporary."

[15] Counsel contended that in the whole circumstances the Secretary of State was not entitled to hold that any separation would merely be temporary. In expansion of that contention counsel observed that the petitioner was not a spouse and would be unable to marry Ms M for an indeterminate period as she was not yet divorced. He therefore could not apply as a fiancé as he could not establish that he would be able to marry Ms M within 6 months as it could not be said when a Sheriff Court decree of divorce would be granted. Therefore the period the petitioner would be out of the United Kingdom before be might qualify to apply for leave to enter was indeterminate and likely to be lengthy. Thus the Secretary of State in taking account of the time for processing such applications in circumstances where the petitioner could not make such an application with any hope of success had taken into account an irrelevant matter.

11. Turning to his next ground of argument counsel maintained that the following finding of the Secretary of State was irrational:

"There would in any event be nothing to prevent contact being maintained through modern forms of communication and visits by Ms M if that is her wish."

[16] It was contended that the foregoing failed to recognise that a relationship by telephone or internet was fundamentally different from where parties were living close by and could have personal contact. The Secretary of State had failed to consider that an Immigration Judge might consider this fundamental difference in relationship would amount to a significant interference in family or private life.

12. The Secretary of State goes on in the said paragraph to say the following:

"If the effect of your client's removal was to terminate the relationship it is not considered, in light of what is referred to above, that this would be a disproportionate interference with their rights under Article 8 no matter how upsetting this might be to the parties concerned."

[17] It was submitted that the foregoing was perverse. It could not be said that this was a proper approach to cause unlimited upset to two UK citizens, namely Ms M and her child.

13. The final ground of challenge taken shortly was that the Secretary of State had failed to take account of the medical condition of Ms M and her child and the practical and emotional support which the petitioner provided to them and thus her decision was irrational.

Counsel intimated that he did not intend to argue the grounds of challenge as detailed in paragraph 45 of the petition.

[18] For the foregoing reasons he moved that the decision of the Secretary of State should be reduced.

The reply on behalf of the Secretary of State

[19] Counsel for the Secretary of State commenced his address by making certain general observations.

[20] He submitted that the starting point for the court in reviewing a decision of the Secretary of State where removal is resisted on article 8 grounds was as laid out by Lord Bingham of Cornhill in R (Razgar) v The Secretary of State for the Home Department 2004 2AC 368 at 389 paragraphs 17 to 20 where the following guidance is given:

"17. In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on article 8, these questions are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference 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? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?

18. If the reviewing court is satisfied in any case, on consideration of all the materials which are before it and would be before an adjudicator, that the answer to question (1) clearly would or should be negative, there can be no ground at all for challenging the certificate of the Secretary of State. Question (2) reflects the consistent case law of the Strasbourg court, holding that conduct must attain a minimum level of severity to engage the operation of the Convention: see, for example, Costello-Roberts v United Kingdom (1993) 19 EHRR 112. If the reviewing court is satisfied that the answer to this question clearly would or should be negative, there can again be no ground for challenging the certificate. If question (3) is reached, it is likely to permit of an affirmative answer only.

19. Where removal is proposed in pursuance of a lawful immigration policy, question (4) will almost always fall to be answered affirmatively. This is because the right of sovereign states, subject to treaty obligations, to regulate the entry and expulsion of aliens is recognised in the Strasbourg jurisprudence (see Ullah and Do [2004] 2 AC 323, 339, para 6) and implementation of a firm and orderly immigration policy is an important function of government in a modern democratic state. In the absence of bad faith, ulterior motive or deliberate abuse of power it is hard to imagine an adjudicator answering this question other than affirmatively.

20. The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal. In Secretary of State for the Home Department v Kacaj [2002] Imm AR 213, 228, para 25, the Immigration Appeal Tribunal (Collins J, Mr C M G Ockelton and Mr J Freeman) observed that: "although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate." In the present case, the Court of Appeal had no doubt [2003] Imm AR 529, 539, para 26, that this overstated the position. I respectfully consider the element of overstatement to be small. 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."

[21] The statement of his Lordship regarding the fifth question has to be read in light of his further observations on this question as set out in Huang v Secretary of State for the Home Department 2007 2 AC 167, at 188A.

[22] It was counsel's general submission that the Secretary of State had carefully considered all of the material before her; had approached the matter in the manner laid out by Lord Bingham of Cornhill; and had proper regard to the guidance of Buxton LJ in WM v SSHD.

[23] Turning to the specific grounds of challenge advanced on behalf of the petitioner he submitted as follows:

Grounds of challenge

1. He submitted it was perfectly clear from a consideration of the whole terms of paragraph 25 that all that the Secretary of State was saying there was that certain documents which she had considered at paragraphs 16 and 17 of the decision letter did not support the contention that the relationship between Ms M and the petitioner had existed for four years. This section of paragraph 25 could not support the contention that the Secretary of State had failed to consider the terms of the statements of the petitioner and Ms M. The Secretary of State had separately considered these statements at paragraph 14.

2. He observed that at paragraphs 25 and 26 of the decision letter the Secretary of State had dealt with the issue of co-habitation. He submitted that the Secretary of State at no point when considering this issue held either expressly or impliedly that without cohabitation family life could not be established. Rather he submitted that on looking to the decision letter at these paragraphs the Secretary of State had applied a test more favourable to the petitioner than the Strasbourg court had laid down in the case of Kroon. Counsel conceded that if I were of the view that on a proper construction the Secretary of State had held that cohabitation was a prerequisite to the establishment of family life then this was a misunderstanding of the law. He did not seek to challenge the case law which had been founded upon by counsel for the petitioner in support of his contention that cohabitation did not have to exist for family life to be established.

3. He submitted that on the basis of the Secretary of State's analysis of the evidence there was no irrationality in her reaching the conclusion that the circumstances presented did not amount to family life. It was his position that there was no factor which in the light of the accepted lack of cohabitation such as the birth of the four children in the Kroon case could establish family life. There was no realistic prospect of an Immigration Judge holding to the contrary.

4. So far as failing to consider family life from the perspective of the child counsel submitted that this was not the case. It had in particular been contended on behalf of the petitioner that the Secretary of State had taken no cognisance of what was said in the statements of the petitioner and Ms M, namely: that the child called the petitioner dad and that other parents assumed that the petitioner was the child's father. So far as the first contention was concerned he submitted that the matter had been properly considered by the Secretary of State within paragraph 26 where she carried out the objective assessment of whether as a matter of fact family life existed. As far as the second contention was concerned it was counsel's position that this was not really a relevant consideration. If someone, who was unaware of the relationship between the petitioner and Ms M's son wrongly construed that they were father and son this took the petitioner nowhere.

5. In relation to the contention that the Secretary of State at paragraph 32 had wrongly held that the onus was on the petitioner to establish that he was an exceptional case counsel made two points. First, fairly read the particular passage which had been referred to by counsel for the petitioner was doing no more than replying to an assertion of the petitioner's solicitors in 6/2 of process. Secondly, even if that was wrong, when the decision letter as a whole was looked at the Secretary of State had assessed without reference to onus on the facts and circumstances presented to her whether there was a realistic prospect of an Immigration Judge holding that the removal was disproportionate.

6. Counsel's reply was a brief one and was to the effect that having regard to the whole terms of the decision letter the Secretary of State had fully considered these points.

7. Counsel submitted that the Secretary of State in carrying out the proportionally exercise on the esto basis of an Immigration Judge holding family life had been established had carried out a proper balancing exercise. It was his submission that having regard to paragraphs 35 and 42 in particular the Secretary of State had carried out such a proper balancing exercise.

8. Turning to the eighth ground of challenge which was to the effect that the Secretary of State had wrongly applied the dicta in the Chikwamba case he argued that at paragraphs 37 and 38 the Secretary of State demonstrated a sound understanding of what can properly be taken from the Chikwamba case. It was his position that what could be taken from this case was that it was rarely proportionate to insist upon a removal where the person to be removed is a parent of a child; where the child has spent his whole life in the United Kingdom; where the child would be compelled to accompany the person being removed to another country; where the conditions within that country were described as harsh and unpalatable and this was all in the context of it being accepted that as soon as that person went to the other country their application to return to the United Kingdom would be granted. It was his position that none of these circumstances applied in the instant case and that accordingly the Secretary of State on reasonable grounds had held that an Immigration Judge would find the circumstances of the instant case distinguishable from those in Chickwamba.

9. The ninth argument advanced by the petitioner he submitted had no foundation on the basis that in the section of paragraph 38 relied on by the petitioner all that the Secretary of State was doing was setting out a hypothesis which was favourable to the petitioner, i.e. she proceeded on the assumption that the petitioner and Ms M intended to marry.

10. Counsel submitted that there was nothing unreasonable in the Secretary of State's approach in considering the normal period for entry clearance to be granted and holding that in these circumstances any removal would be likely to be temporary. The Secretary of State was entitled to proceed on the basis that the petitioner and Ms M would get married as soon as possible given the terms of the statements submitted and therefore was entitled to have regard to the normal period in which entry clearance was given.

11. As regards the argument that the Secretary of State had failed to take into account the fundamental difference between a relationship where the two parties could meet everyday and where their only form of communication would be by telephone or internet it was his position that removing someone did, by its very nature, change the relationship with persons who remained in the removing state. It was absolutely obvious that this was an interference and did not have to be actually stated by the Secretary of State to show that she had considered this.

12. As to it being perverse for the Secretary of State to say no matter how upsetting the petitioner's removal nevertheless still proportionate to remove this was no more than the Secretary of State recognising that it is unpleasant for somebody to be removed and taking this factor into account. Thereafter the Secretary of State had rationally reached the conclusion that this unpleasantness was not enough to make the removal disproportionate.

13. Counsel described this reference to Ms M's and her son's medical condition as having come out of the blue. It was not an issue raised in the petition and it was not an issue which was raised in the statements produced from the petitioner and Ms M. Further there was nothing in the letter to the Secretary of State that the petitioner played any particular role in assisting Ms M and her child in relation to medical problems. It was his position that this was a wholly baseless argument.

Discussion

[24] Before turning to deal in detail with each of the grounds of challenge I would wish to make a preliminary observation and that is this: in considering whether a claimant has a realistic prospect of success I recognise that the test is a modest one, it means only more than a fanciful prospect: R (AK (Sri Lanka) v Secretary of State for the Home Department [2010] 1 WLR 855 per Laws LJ at paragraph 34.

Detailed grounds of challenge

1. In paragraph 25 of the decision letter the following is narrated:

"As noted above, the documents your client has submitted is not considered evidence which establishes a four year relationship between your client and Ms M."

[25] I am not persuaded that it is a correct interpretation of this passage in the decision letter that the Secretary of State has failed to consider the statements of the petitioner and Ms M regarding their relationship and the length of it. I note that this particular section begins "As noted above" and I believe that this is a clear reference back to paragraphs 17 and 18 of the decision letter where the Secretary of State considers certain documents tendered on behalf of the petitioner to support a four year relationship between the petitioner and Ms M. The Secretary of State concludes, for reasons which are set out in those paragraphs, that they do not support such a length of relationship. At no point in those paragraphs is reference made to the statements by the petitioner and Ms M. Thus her finding at paragraph 25 of the decision letter relates solely to whether these documents provided evidence which established such a four year relationship. The Secretary of State was entitled for the reasons which she sets out at paragraphs 17 and 18 to hold that these documents did not establish that length of relationship.

[26] The Secretary of State deals separately and in detail with the statements of the petitioner and Ms M at paragraph 14 of the decision letter including setting out the parts of Ms M's statement relating to the length of the relationship. In paragraphs 25 and 26 she makes repeated references to material derived from the statements of the petitioner and Ms M. It is plain on looking to the whole terms of the decision letter that the Secretary of State has had regard to the whole terms of the statements. She has considered as part of the whole circumstances presented to her whether a four year relationship establishes family life. In rejecting the establishment of family life she has observed first that the petitioner has only been in the UK for a "short time" (see paragraph 25) and therefore the four year relationship has equally existed only for a short time and second that there is no cohabitation between the petitioner and Ms M. These were relevant factors. In my opinion no criticism can be made of her approach to this issue.

2. The second ground of challenge was that the Secretary of State had as a matter of law wrongly held that it was necessary for the petitioner and Ms M to be cohabiting before family life could be established.

[27] In my judgment on no possible reading of the decision letter at paragraph 25, which paragraph was the foundation for this submission, could it be held that the Secretary of State had considered cohabitation to be a prerequisite in establishing family life.

[28] The Secretary of State in that paragraph states no more than that the lack of cohabitation:

"is considered to point to the relationship not being one that involves family life" (my emphasis)

[29] Properly understood the words "is considered to point to" in the context of this paragraph are saying no more than that non-cohabitation is a factor which tends not to support the establishment of family life and on the basis of the observations of the court in Kroon and others v The Netherlands at paragraph 30 to which I was referred by counsel for the petitioner that is a view which the Secretary of State was entitled to reach.

3. This ground of challenge related as I understood it to a contention that the Secretary of State had failed to have regard to the three miscarriages which Ms M had suffered when considering whether family life had been established. Counsel went on to contend that on the basis of these three miscarriages it was open to an Immigration Judge who was not being perverse to hold that despite the lack of cohabitation family life had been established. In Kroon and others v The Netherlands the court observes:

"Although, as a rule, living together may be a requirement for such a relationship, exceptionally other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto "family ties"."

[30] I am not persuaded that the three miscarriages are a factor which can in the absence of cohabitation exceptionally demonstrate that the relationship has sufficient constancy to create de facto family ties. In the Kroon case Mrs Kroon and Mr Zerrouk had four children and the court said this:

"A child born of such a relationship is ipso jure part of that "family unit" from the moment of its birth and by the very fact of it (see the Keegan judgment, ibid). There thus exists between Samir and Mr Zerrouk a bond amounting to family life, whatever the contribution of the latter to his son's care and upbringing."

[31] The fact that Ms M has most unfortunately sustained three miscarriages does not create a bond amounting to family life in the way that the birth of a child or children would. The birth of a child creates a bond. A miscarriage by its very nature creates no such bond.

[32] I am not persuaded that the Secretary of State's approach to the issue of whether family life has been established can be faulted. She has had regard in my view to all relevant factors and has not had regard to any irrelevant factors. She has fully and carefully considered the issue. I am not persuaded that there is any realistic prospect of an Immigration Judge reaching a different conclusion on the issue of the establishment of family life.

[33] Cohabitation although not a requirement for family life is clearly, on the basis of the guidance given in Kroon and others v The Netherlands normally a very important element in the establishment of family life and only exceptionally in its absence can family life be established. The Secretary of State was entitled to hold that the factors relied on here which were principally the three miscarriages suffered by Ms M, the contention that the petitioner played the role of the social father of Ms M's child and the length of the relationship between the petitioner and Ms M did not establish family life when viewed against the other factors in the case and that there was no realistic prospect of any Immigration Judge making a different decision.

4. As regards the fourth ground of challenge I am satisfied that the Secretary of State had regard to family life from the child's perspective.

[34] The Secretary of State fully and carefully considers this issue at paragraphs 25 and 26 of the decision letter. She takes into account all of the factors placed before her regarding the petitioner's relationship with the child and the child's relationship with him. She in particular considers the factors particularly relied on by the petitioner namely: that the child calls the petitioner dad and that outsiders assume that he is the father of the child. She thus I believe approaches the matter from the position of the child. The decision which she arrives at on this issue having regard to the whole material before her I am satisfied is a rational one. I would accordingly reject this ground of challenge.

5. This ground of argument was based on the contention that the Secretary of State at paragraph 32 had wrongly placed an onus on the petitioner to demonstrate that he was an exceptional case in order to be successful. This and the immediately preceding paragraph deal with the issue of proportionality. The Secretary of State in these paragraphs is looking at the factors put forward on the petitioner's behalf and weighing them against the legitimate public end sought. She is dealing with the assertion made by the petitioner's solicitors that these factors outweigh the legitimate aim and it would not be proportionate to remove him. When looked at in this context the complained of sentence cannot on a proper understanding bear the construction placed upon it by counsel for the petitioner.

[35] In any event I agree with the submission made on behalf of the Secretary of State that when the whole terms of this decision are looked at the Secretary of State's decision has been made on the basis of all the information before her and that she has not in any way sought to reverse the onus.

6. As regards ground six for reasons which I have already stated I do not accept that there is a realistic prospect of the petitioner establishing a family life before an Immigration Judge. The Secretary of State carefully and fully considers proportionality at paragraphs 35 and 42 and in particular has regard to the private life established by the petitioner. I am not persuaded she has failed to take account of any relevant consideration when considering proportionality.

7. The Secretary of State considers in the course of the decision letter (at paragraph 43) an esto position namely: if she was wrong in holding that family life did not exist was there a realistic prospect of an Immigration Judge making a different decision regarding the petitioner's removal. As a general observation I believe that the Secretary of State's consideration of this position shows the careful and thorough manner in which she has approached the petitioner's representations. At paragraphs 35 and 42 the Secretary of State engages fully with the balancing exercise which she was required to carry out. She considers the position of whether there would on the removal of the petitioner be a disproportionate interference with the petitioner's, Ms M's and her son's rights under Article 8. She sets forth in detail the factors weighing on each side and arrives at a rational decision. I am unable to identify any basis for the submission that this was not a properly carried out balancing exercise.

8. The case of Chikwamba is considered by the Secretary of State at paragraphs 37 and 38 of the decision letter. I am unable to find any error in the Secretary of State's analysis of Chikwamba and her application of that case to the circumstances of the petitioner. The circumstances of the petitioner can clearly be distinguished from those in Chikwamba for the reasons advanced by counsel for the Secretary of State and by reference to the speech in Chickwamba of Lord Brown of Eaton-under-Heywood at pages 1432 and 1433, paragraph 46. The case of Chikwamba was clearly entirely different from the petitioner's case. Counsel for the petitioner's submissions under this head were based on a misconceived view as to the dicta in Chikwamba. I accordingly reject this ground of challenge.

9. The next ground of challenge is based on a phrase used in paragraph 38 of the decision letter namely:

"if it is truly the intention of Ms M and your client to marry".

[36] It is contended on behalf of the petitioner that this calls into question the intention of the parties.

[37] I prefer the submission for the Secretary of State, namely: that the phrase when properly construed is not intended to cast doubt on the intention of the petitioner and Ms M to marry rather it is the Secretary of State putting forward a hypothesis in order to set out what would happen in Cameroon should that situation come about and to highlight the point that separation in these circumstances would only be temporary. In my view such an approach cannot be faulted.

10. This ground of challenge was to some extent connected to the ninth ground. Again I preferred the submissions made on behalf of the Secretary of State. The petitioner's whole case is predicated on the fact that he intends to marry Ms M. The Secretary of State is therefore entitled to assume that they would wish to get married as soon as possible. Ms M and her husband separated in 2006 (see paragraph 3 of her statement). She is therefore entitled to be divorced on the basis of two years separation in terms of the Divorce (Scotland) Act 1976, section 1(2)(e). Her husband would not be in a position to defend such an action. Even if her husband's current whereabouts are unknown that in no way stops Ms M from raising divorce proceedings and obtaining a decree. She accordingly has been in a position to obtain a divorce for some time. Thus the Secretary of State was entitled to hold that any separation would be temporary and of short duration assuming as she was entitled to do that the petitioner and Ms M would get married at the earliest opportunity.

11. I am clearly of the view that the Secretary of State was not required to state expressly in the decision letter that the petitioner being in Cameroon and Ms M being in Scotland would fundamentally change their relationship in that that is inevitable and does not have to be set out in the decision letter to show that it was considered.

12. The next ground challenged the following sentence in paragraph 38:

"If the effect of your client's removal was to terminate the relationship it is not considered, in light of what is referred to above, that this would be a disproportionate interference with their rights under Article 8 no matter how upsetting this might be to the parties concerned."

[38] In my opinion all the Secretary of State was recognising in that passage was that where parties had a close relationship as was claimed on behalf of the petitioner and Ms M the ending of that relationship would be upsetting and that mere upset of itself would not amount to a disproportionate interference with their rights under Article 8 no matter how upset parties were given the other factors to which she was required to have regard. I am unable to identify anything wrong in law with that statement. In particular it is not a perverse finding.

13. As regards the ground put forward based on the medical condition of Ms M and her child and what the petitioner did for them resulting therefrom this was a line of argument which was not contained in the petition, it was not contained in the previous representations to the Secretary of State and I can find no basis for it. Ms M makes reference to her having a medical condition and her son having a medical condition. There is, however, nothing to the effect that the petitioner is required in some way to look after either of them. Accordingly the Secretary of State has not left out of consideration a material factor. I accordingly reject this ground of challenge.

Decision

[39] For the foregoing reasons I am not persuaded that there is any basis for the Court to intervene. Having considered the criticisms advanced both individually and cumulatively, I conclude that the Secretary of State (1) took account of all relevant matters; (2) did not take account of any irrelevant matters and (3) did not misdirect herself as to the law to which she had to have regard. Her decision of 29 July 2011 satisfies the requirement of anxious scrutiny and the decision not to treat the representations made by the petitioner as a fresh claim was not unreasonable, irrational or otherwise unlawful. Accordingly I shall repel the plea in law for the petitioner, sustain the second plea in law for the Secretary of State and refuse the petition. I shall reserve in the meantime all questions of expenses.