Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 47
P1267/11	OPINION OF LADY CLARK OF CALTON in the Petition of F. Z. Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department dated 4 October 2011 Respondent: ­­­­­­­­­­­­­­­­­________________

Petitioner: S Winter, Advocate; Drummond Miller LLP

Respondent: A Webster, Advocate; Office of the Advocate General

14 March 2012

Summary

[1] This case came before me for a first hearing on 28 February 2012.

[2] The petitioner's case has a long history. The history, with one exception which I did not regard as significant for the purposes of this case, was not in dispute and is summarised in pages 1 and 2 of 6/1 of process. The disputed matter related to the sums involved in illegal claims for benefits (para 2 page 6 of 6/1 of process).

[3] The petitioner's appeal rights became exhausted in July 2007.

[4] Further representations were made on behalf of the petitioner on 22 June 2010. These submissions were rejected by letter from the respondent dated 4 October 2011 (6/1 of process).

The decision which is the subject of judicial review
[5] The matters which came before me for judicial review focused on the decision of the respondent set out in said letter dated 4 October 2011 (6/1 of process). The decision letter explains that the application was not considered by the respondent personally but by an official acting on her behalf.

[6] The decision letter (6/1 of process) dealt with written representations setting out facts and circumstances which were stated to give rise to a "fresh claim" under and in terms of paragraph 353 of the Immigration Rules. The representations were accompanied by documentary evidence which is summarised at page 3 of 6/1 of process. The documents are productions in 6/4 of process.

[7] Counsel for the respondent stated that there was a typing error in the decision letter. The word "not" at page 4 line 22 of 6/1 of process should be read as deleted. In consequence of that, counsel for the respondent conceded that the respondent accepted in the decision letter that the petitioner had established both a private and family life in the UK. It was also not in dispute that removal will potentially interfere with private and family life in the sense that the petitioner, his wife and children will be removed from the UK to the Congo, the petitioner's country of origin.

[8] In this case in considering whether there was a fresh claim for the purposes of paragraph 353 of the Immigration Rules issues to be considered were whether the interference with private and family life is necessary in the interests of a legitimate public end and whether it is proportionate to that end. The legitimate public aim relied on by the respondent is the maintenance of the system of immigration control. There was no dispute that this was a legitimate public aim which could weigh in the balance in considering proportionality in relation to Article 8 of the European Convention on Human Rights (ECHR).

Submissions by counsel for the petitioner
[9] In the course of oral submissions, counsel for the petitioner narrowed the scope of the petition. His main submissions rested on paragraphs 6, 7 and 10 of the petition. In summary, counsel submitted that the respondent had identified the correct test based on W M (DRC) v Secretary of State for the Home Department [2007] Imm AR but had misapplied it by failing to exercise anxious scrutiny. The respondent sets out the test at pages 2 to 3 of 6/1 of process.

[10] Counsel submitted that the respondent had adopted the wrong approach in assessing the best interests of the children. He prayed in aid Z H (Tanzania) v Secretary of State for the Home Department [2011] 2 A C 166 and M K (best interest of child) (India) [2011] UKUT 00475 (IAC).

[11] In developing his submission, counsel relied mainly on passages from the judgment of Baroness Hale of Richmond JSC in particular paragraph 33 thereof. Baroness Hale stated:

"33. We now have a much greater understanding of the importance of these issues in assessing the overall well-being of the child. 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 (my underlining). 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. And the inevitable result of removing their primary carer would be that they had to leave with her. ..."

[12] Counsel submitted that, on examination of the decision letter, 6/1 of process, it was plain that the respondent had not considered first the best interests of the children as a primary consideration. It was plain that the decision maker had considered and assessed the asylum history first before coming to the conclusion set out in the third paragraph at page 6 of 6/1 of process. In reaching that conclusion, the respondent put first the "wider interests and rights of the public" in her concern to maintain effective immigration control.

[13] Counsel submitted that the correct approach is illustrated in M K. He referred in particular to paragraphs 19 and 23. The Upper Tribunal stated:

"19. First of all it is clear from the judgments of their lordships in ZH (Tanzania) (Lords Hope, Brown, Mance and Kerr expressing full agreement with the reasoning of Baroness Hale) that whilst consideration of the best interests of the child is an integral part of the Article 8 balancing exercise (and not something apart from it), it is a matter which has to be addressed first and as a distinct stage of the inquiry. The decision maker has first to make a decision on what is in the overall best interests of the child and only then to assess whether those interests are outweighed by countervailing factors such as those concerned with the rights and freedoms of others, the effective maintenance of immigration control, prevention of crime, etc (Baroness Hale, para 33, Lord Hope, para 44, Lord Kerr para 46). The underlying rationale must be that unless, when children are concerned, the Article 8 proportionality assessment is conducted in this way there is a risk of the best interests of the child consideration wrongly taking into account extraneous factors such as the parents' poor immigration history. ...

23. There is in our view a fourth point of principle that can be inferred from the Supreme Court's judgments in ZH (Tanzania). As the use by Baroness Hale and Lord Hope of the adjective "overall" makes clear, the consideration of the best interests of the child involves a weighing up of various factors. Although the conclusion of the best interests of the child consideration must of course provide a yes or no answer to the question, "Is it in the best interests of the child for the child and/or the parent(s) facing expulsion/deportation to remain in the United Kingdom?"', the assessment cannot be reduced to that. Key features of the best interests of the child consideration and its overall balancing of factors, especially those which count for and against an expulsion decision, must be kept in mind when turning to the wider proportionality assessment of whether or not the factors relating to the importance of maintaining immigration control etc. cumulatively reinforce or outweigh the best interests of the child, depending on what they have been found to be".

[14] Counsel further submitted that it appeared that the respondent had merely given a "cursory glance" to the information bearing upon the Article 8 claim. Counsel was critical of the brevity of reference to the situation of the family and children and the lack of any detailed reasoning about the best interests of the children. He submitted that on a fair reading of the decision letter, it was plain that the respondent had not carried out the task which was required applying anxious scrutiny to these important issues.

[15] In relation to paragraph 8 of the petition counsel prayed in aid R (on the application of T S) v Secretary of State for the Home Department [2001] ImmAR 164. He submitted that the information in 6/9 of process was relevant to the respondent's decision making. There was no reference to any of that information in the decision letter. He accepted that the respondent had not been asked to consider all or any of that information. Counsel was invited by me to explain what information he said was material which had been overlooked and not dealt with by the respondent. Counsel referred in particular to the references in 6/9 of process to the inadequacies in the school system in the country of origin, the Congo.

[16] In relation to paragraph 11 of the petition, counsel submitted under reference to E B (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159, at paragraph 14, that the respondent had erred by failing to apply anxious scrutiny to the fact that the petitioner and his family had as a result of delay in removing them developed closer, personal and social ties and established deeper roots in the community in the UK. He submitted that should be seen as a factor to strengthen the petitioner's case. In the light of the agreed history, counsel accepted that this was not a case in which any delay should be considered as the responsibility or "fault" of the respondent.

[17] Counsel did not seek to relay on paragraph 9 of the petition. He accepted that paragraph 12 of the petition did not raise any new point.

Submissions on behalf of the respondent
[18] I am grateful to counsel for providing a detailed written outline argument (15 of process) which it is not necessary to summarise.

[19] Counsel invited me to dismiss the petition and sustain the third plea in law for the respondent.

[20] In addressing the issues which counsel for the petitioner had raised in relation to paragraphs 6, 7 and 10 of the petition, counsel submitted that the case of Z H (Tanzania) dealt with a wholly different factual situation. He made reference to passages at paragraphs 14 to 33 to put the matter into context. He submitted that the reference by Baroness Hale of Richmond JSC in paragraph 33 did not mean that it is a requirement to consider the best interests of the children first so that the interests of the children must be considered in the first part of any decision before anything else is considered.

[21] Counsel invited me to consider the substance of the decision letter 6/1 of process and the way in which the respondent had approached the Article 8 issues. He submitted it was not correct to consider merely the layout and form of the decision letter.

[22] Counsel submitted that there had been no error of approach by the respondent. There were no material factors identified on behalf of the petitioner which the respondent had failed to take account in reaching a decision. It was emphasised that this was an Article 8 case and even if the petitioner ought to have decided that it was in the best interests of the children to remain in the UK, that did not conclude the exercise. Counsel submitted that in balancing the proportionality of removal, immigration control is an important factor for consideration. He submitted that the balancing exercise carried out by the respondent was well within the margin of reasonable decision making. The petitioner had failed to identify any grounds which would justify reduction of the decision.

Discussion
[23] This is a case in which the further representations founded on by the petitioner relate only to Article 8 ECHR.

[24] There was no dispute between the parties that the test to be applied by the respondent and by the court in assessing what is a fresh claim is set out in WM (DRC) v Secretary of State for the Home Department [2007] ImmAR 337 at paragraphs 6 to 11. I have dealt with the case on the basis that the test in WM (DRC) applies and that has been accepted as a low test.

[25] As we traversed in submissions the legal and geographical landscape, I considered that there was a risk of forgetting the facts in this case which underlie the decision making.

[26] The petitioner has three children, a son born 27 April 2004, a daughter born 3 February 2007 and a daughter born 14 April 2011. These are all young children who have spent their infancy in home circumstances with the petitioner as a parent and or with his wife as a parent. The children are still of an age where the parental association and care is very important.

[27] In the course of submissions, neither counsel referred in any detail to the documents which are the foundation of the case. These are contained in 6/4 of process. In a proforma statement the petitioner submits that there is a change in personal circumstances and states:

"I have established a family life in the UK and a private life. My children are being educated here, so am I and my wife. I am well established in my church and have a good educational background. We are model British residents and should be afforded the chance to legalise our stay and then work". In answer to the question why this means the petitioner should remain in the UK, the answer is given "my children have been here over five years. I have been here nine years. We have integrated. We have established a family and private life under Article 8".

[28] Various documents, relating to the childrens' schooling, church and educational involvement, accompanied this statement and are contained in 6/4 of process. None of these documents raise any issues about problems which the children might face if they are removed with the petitioner and his wife to the Congo to live there instead of the United Kingdom. The documents do have some limited information about the children, particularly in relation to their schooling. The letter dated 11 May 2010 from Social Work Services pre-dates the birth of the petitioner's third child born 14 April 2011. Said letter gives some general information about the family circumstances in the UK.

[29] Counsel for the petitioner made it plain that the foundation for the grant of judicial review in this case was based on his submissions in relation to paragraphs 7 and 10 of the petition. His criticism of the approach adopted by the respondent is based on his interpretation of Z H (Tanzania) supra) and in particular the passage in paragraph 33.

[30] In my opinion, in the analysis set out by Baroness Hale of Richmond JSC, she is highlighting the need to consider separately, for the purposes of Article 8, the circumstances of all the family members including the children who might be affected by a decision to remove a family member.

[31] Baroness Hale of Richmond JSC considers at paragraph 17 to 20 the Strasburg jurisdiction and the United Nations Declaration on the rights of a child in paragraphs 21 to 28. Thereafter she applies the derived principles to the particular facts of the case of Z H (Tanzania). In doing so, she focuses on the need to consider as a separate issue matters relating to the best interests of a child as a "primary consideration". (paragraph 25). She explains that exercise is not to be confused or muddled with the consideration of other factors which are not related to the best interests of a child. She accepts however that to consider the best interests of a child as "a primary consideration" is not the same as treating the issue as "the primary consideration" still less as "the paramount consideration" (paragraph 25). She also accepts that in considering Article 8, the decision maker is entitled to consider whether or not there is an interference and whether it constitutes a disproportionate interference contrary to Article 8 (paragraph 14). As I read her judgment, in explaining the error made in the Court of Appeal, Baroness Hale of Richmond JSC emphasised the importance of assessing separately the best interest of the child before any balancing exercise is done. I do not consider that she is providing a template of the order in which all issues must be addressed in every case. I do not accept that the reference made in paragraph 33 to "first consideration" is to be taken as a literal requirement about the order in which a decision maker who may require to consider a number of issues, apart from the best interests of a child, should approach their task in any case. In my opinion counsel for the petitioner was wrong in his submission and his criticisms of the approach adopted by the respondent in this case.

[32] The respondent in this case required to consider in the context of a paragraph 353 application not only Article 8 issues in relation to the children but also in relation to the Petitioner and his wife. The representations made by the Petitioner specifically raised issues which were wider than issues relating to the children.

[33] On a fair reading of the decision letter (6/1 of process) it appears from the last paragraph of page 6 and in particular the first two paragraphs of page 7, the respondent considers as a separate and discrete issue the best interests of the children. At this point of her consideration, the respondent does not consider issues unrelated to the best issues of the children. In particular she does not consider the asylum history in her assessment of the best interests of the children. In her consideration, the respondent has taken into account general background information about the Congo (not supplied by the petitioner). The respondent concludes that education and health standards in the Congo may not be of the same standard as in the UK.

[34] I accept that the assessment by the respondent is brief but this is a case in which the information provided was brief. No issue was raised by the petitioner that the children would have some particular problems or adversity in the Congo if returned there with him and his wife.

[35] In paragraph 8 of the petition, counsel for the petitioner prays in aid the information in productions 6/7 to 6/9. Counsel accepted that the petitioner had not relied on these documents in any way. He stated that these documents were available to the respondent and provided background information about the country of origin of the petitioner. I was referred by counsel for the petitioner in particular to 6/9 of process paragraph 2 which gave certain information about primary school attendance and drop out rates. It was not averred in the petition or presented in oral submission that this general background information was significant except as background information. No particular risks to the children of the petitioner were identified if they were returned to the Congo. I consider that it is a fair inference that the respondent in making reference to the education and health standards in the Congo had in mind such general information.

[36] I consider that there is no merit in counsel for the petitioner's submission in relation to paragraph 11 of the petition. In any event at pages 7 and 8 of 6/1 of process the respondent has had regard to the totality of the length of time of residence in the UK.

[37] For these reasons I refuse the order of reduction sought by the petitioner, dismiss the petition and sustain the third plea in law for the respondent. I reserve all issues relating to expenses.