Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 53
P1344/11	OPINION OF LORD GLENNIE in the cause R M Petitioner; against Judicial Review of the decision of the Secretary of State for the Home Department dated 30 January 2012 to refuse to treat his further submissions as a fresh claim Respondent: ­­­­­­­­­­­­­­­­­________________

Petitioner: Winters; Drummond Miller LLP

Respondent: Olson; The Office of the Advocate General

21 March 2012

Introduction

[1] The petitioner entered the UK illegally on 12 September 2006 and claimed asylum on the following day. His asylum application was refused on 13 April 2010, over 31/2 years later. He appealed, but his appeal was refused by an Immigration Judge on 9 June 2010. By letter dated 4 November 2010, the petitioner's agents submitted further representations raising issues under Article 8 ECHR and requesting that they be treated as a fresh claim. In a decision letter dated 3 March 2011 ("the first decision letter"), the Secretary of State refused to treat those representations as a fresh claim. The petitioner applied for judicial review of that refusal. However, recognising that the refusal letter of 3 March 2011 was flawed (as accepted in the Answers to the Petition), the Secretary of State issued another refusal letter on 30 January 2012 ("the second refusal letter) in an attempt to deal with the deficiencies identified by the petitioner.

[2] The second refusal letter, issued just before the first hearing fixed for 9 February 2012, prompted the petitioner to amend the petition to deal with the revised grounds of refusal. As a result, the first hearing was able to proceed on the date fixed, with both refusal letters technically being under review. However, counsel sensibly agreed that attention need only be focused on the second refusal letter. If that were to be reduced, then the court would pronounce an interlocutor reducing both decisions. On the other hand, if it were not reduced, the fate of the first refusal letter would be academic. Both parties and counsel are to be commended upon their flexible and constructive approach, which has saved unnecessary delay and expense.

Rule 353

[3] The making of a fresh claim, and what amounts to a fresh claim, is the subject of para.353 of the Immigration Rules (HC 395C). This provides that:

"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and,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 ..."

It is now well established that although sub-para.(ii) talks of the content of the submissions, taken with previous material, creating "a realistic prospect of success, notwithstanding its rejection", the test to surpass is a modest one, requiring the applicant to show only that he has more than a fanciful prospect of success: see R (AK) (Sri Lanka) v Secretary of State for the Home Department [2010] 1 WLR 855 at para.34.

[4] There has been much discussion in the cases about the role of the court in assessing, on an application for judicial review, the reasonableness (in a Wednesbury sense) of a view formed by the Secretary of State that there is no realistic prospect of an adjudicator allowing the appeal. We are not here in that area. The petition raises two distinct grounds of challenge to the second refusal letter, which, if arguably well founded, would clearly entitle the petitioner to say that he has a realistic, or non-fanciful, prospect of success.

The second refusal letter

[5] Before coming to those two grounds of challenge, however, I should set out the material parts of the second refusal letter. It starts by correctly summarising the approach to the treatment of further submissions in terms of paragraph 353 of the Immigration Rules. It then sets out the history of the matter, including the dismissal by the First-tier Tribunal of the petitioner's appeal against the refusal of his first asylum claim, and the further representations submitted on 4 February 2011, which put forward a claim that the petitioner and his family had established a private and family life in the UK and that to remove them from the UK would be a breach of their rights under Article 8 ECHR. The decision letter addresses this directly in the following paragraph:

"However, any private and family life your client has established in the UK has been done so (sic) in the knowledge that he has no legal right to remain in the UK and was done so in the full knowledge that his immigration status was of the most precarious nature".

The "precarious" nature of the applicant's immigration status whilst he was building up his private life in the UK is re-visited constantly in the reasons as summarised below.

[6] After referring to various letters from friends and organisations submitted in support of the claim to have established a private and family life, the letter goes on:

"It is accepted your client may have developed a private life in the UK, however it is noted any private life established has been done so in the full knowledge of his precarious immigration status and established over a period of time when your client had no lawful basis to be in the country. It is acknowledged that any private life established will suffer disruption if your client is removed, although it could not be said that the level of disruption would be disproportionate to maintaining effective immigration control".

Again there is the reference to the applicant's knowledge of the "precarious" immigration status.

[7] Pointing to the fact that any integration into the local community was after the petitioner had entered the UK illegally and claimed asylum, the decision letter continues:

"Therefore any private or family life established was done so in the full knowledge that his immigration status was precarious and was liable for removal.

Whilst removal will interfere with the friendships your client has developed in the UK and may sever these entirely, it is not considered that this renders your client's removal disproportionate. In any event given modern forms [of] communication there would be no reason why these friendships cannot be maintained in some fashion after removal".

It is to be noted that the statement that removal would not be disproportionate is prefaced by (and clearly intended to be read with) the statement that the applicant built up his private life knowing that his immigration status was precarious.

[8] The decision letter went on to recognise that Article 8 protected the right to private and family life but emphasised, correctly, that it was subject to the proportionate requirements of immigration control. An Immigration Judge examining the case would do so in accordance with Razgar v Secretary of State for the Home Department [2004] 2AC 368 and other cases. The questions to be addressed were identified at paras.17-20 of the judgment of Lord Bingham in Razgar. As to the first question, it was accepted that the petitioner might have established some form of private and family life in the UK. As to the second question, whether refusal or removal would interfere with the petitioner's family and private life, the letter noted that his wife and son would be returned to Iran with him where they could continue to enjoy their family life together. As the petitioner had no close family in the UK, there would be no interference with his family life on removal to Iran. It went on:

"It is accepted that your client's removal would interfere with any private life he has established. However, for reasons that will be expanded on in due course, it will be considered that your client has not established that a removal would amount to a disproportionate interference with his private life".

As to the third issue, namely whether any interference would be in accordance with the law, the letter said this:

"It is a well established principal of law that every state has the right to control the entry of non-nationals into its territory. Article 8 does not give a person the automatic right to choose to pursue his or her family or private life in the UK. Any private or family life that your client may have established has been done so in the knowledge that he had no legal basis of stay and was liable to return to his own country. ...

Although it is accepted that your client may have established a private life, it is considered that the law relating to immigration policy is clear and that he was aware of this law when he claims to have established a private life in the UK".

Again, these two paragraphs, read together, refer to the argument that any private life established by the petitioner had been established in the full knowledge that his immigration status was precarious.

[9] The fifth question was whether such interference was proportionate to the legitimate public ends sought to be achieved. The letter answered that question in the affirmative.

[10] The letter then went on to deal with the position of the petitioner's son who, it was noted, would be aged 18 years on 23 July 2012. He was therefore 171/2 at the time of the refusal letter. The letter stated that consideration had been given to s.55 of the Borders, Citizenship and Immigration Act 2009, which placed a duty on the Secretary of State as regards the welfare of children; that duty being to have regard to the need to safeguard and promote the welfare of children; and to consider the effect on any children of a decision to exclude or deport them pursuant to the need to maintain effective immigration control. The aim, it was said, was always to carry out enforcement of the Immigration Rules in a way that interfered as little as possible with a family's private life, and in particular, enabled a family to maintain continuity of care and development of their children in ways that were compatible with Immigration Law.

[11] The letter then said this:

"In the particular circumstances of your client's case, consideration has been given to the fact that your client's son is now 17 and half years old. He is of an age now where he will be looking to enter higher education if that is what he wishes to do. The representations lodged on behalf of your client's son state that he has been involved in writing songs and performing these in schools throughout Glasgow. No evidence has been produced which would suggest that he could not continue doing this in schools in Iran, a country where he has lived the majority of his life. No evidence has been provided either about why your client's son could not continue on to higher education in Iran. It could be said that the education he has received in the UK over the last few years would place him at a distinct advantage over his peers in Iran, should he wish to pursue his education further. It is reasonable to suggest that he would have a better chance of further academic achievement in Iran rather than the UK given his immigration status".

Mr Olson, for the Secretary of State, was unable to explain what that last sentence meant. If it means that he has little chance of further academic achievement in the UK because he will not be allowed to remain in the UK, it is both self-serving and circular - the question whether he should be allowed to stay in the UK cannot be advanced by an argument which relies on the assumption that permission will be refused. The comment in the preceding sentence about his UK education placing him at a distinct advantage in Iran appears to be pure speculation, particularly since it cannot be assumed that UK qualifications will qualify him for a higher education institute in Iran.

[12] The refusal letter went on to refer to the case of MK (best interests of the child) India [2011] UKUT 00475 (IAC). Having summarised the headnote of that decision, the letter went on to state, correctly, that there was no suggestion of moving the son without his parents, or moving the parents without the son, so that there would not be any interference with family life in the sense of splitting him from his parents. It then stated this:

"Your client's son is a national of Iran and there is no evidence to suggest that he would not be able to enjoy the benefits of that nationality on return to his home country. Moreover, there is no evidence to suggest that he has become divorced from his culture whilst he has been in the UK for the last five years or so.

Given that your client's son ... has spent the majority of his life in Iran and has only been in the UK for 5 years it would be surprising if he was unaware of the culture, tradition and religion of his own country. It would also be surprising, given how long [he] lived in Iran if he could not speak Farsi".

[13] After referring to the Iran Country Information Report at para.24.41 and the British Council's Report on Education in Iran, the letter concluded its consideration of the position of the petitioner's son as follows:

"It is therefore considered that [he] would receive a proper further education in Iran. Indeed when he left Iran there is no evidence to suggest that he received anything other than a proper schooling there. As indicated from the letter from [the Head teacher at his school], [he] has done well in his education in this country and there is no evidence to suggest that this would not continue. There is also no evidence to suggest that return to his home country would be particularly detrimental to his education.

Whilst removal of your client's son along with his parents may occasion temporary disruption in his schooling it is not considered that this would amount to a disproportionate interference with his private life".

[14] On the basis that it was not shown to be in the best interests of the son to remain in the UK, his best interests would be served by his remaining with his parents. Since the parents had no basis for remaining in the UK, and their cultural, religious and linguistic ties lay with Iran, there was no reason to believe that the son, who had been in the UK for 5 years but had lived longer in Iran, would not be able readily to readapt to living in his country of nationality. The decision letter concludes, so far as is material, in this way:

"Aside from schooling in the UK, it is inevitable that [the son] will have formed friendships and otherwise developed a private life of some degree independent at school. The loss of this will no doubt be upsetting to him; however it is not considered that this would be a disproportionate interference with his right to respect of his private life. There is no reason to believe that ... he would not be able to form similar friendships or private life in Iran nor is there reason to believe that he would not be able to maintain friendships formed in the UK through modern forms of communication such as e-mail and Skype. Return to Iran would also allow [him] to benefit from the society of extended family members.

In conclusion it is not considered to be contrary to the best interests of your client's son to return to Iran or alternatively that his removal would be a disproportionate interference with his right to respect for his private life. It is not considered that for the reasons given above and taking into account recent authorities on this issue from the Tribunal, the courts in England and the courts in Scotland that there is a realistic prospect of an Immigration Judge coming to a different conclusion.

Even if it were to be said that the best interests of [the son] was to remain in the UK that is a primary consideration and not the only one. It is not considered that the best interests of your client's son on this occasion outweigh the need to maintain an effective form of immigration control. Any private life [the son] and his family have built up have been against the backdrop of an extremely precarious situation with regards to their immigration status.

Your client's claim has been considered on all the evidence available, including the further submissions and objective information. Because it has been decided not to reverse the decision on the earlier claim, and it has been determined that your client's submissions do not amount to a fresh claim, your client has no further right of appeal".

It is to be noted that the penultimate paragraph quoted above again raises the question of the precarious immigration status at the time of building up the family and private life, but this time the comment is made in relation to the son as well as to the parents.

[15] Two points arise from the parts of the refusal letter which I have set out in some detail. The first relates to the point made repeatedly that any private life built up by the petitioner (and the son) during his time in the UK has been built up in the full knowledge that his immigration status was precarious or, as it was put on the first occasion, "of the most precarious nature". The second relates to the consideration of the interests of the son, and the repeated reference to the fact that "no evidence has been produced" (or similar wording), justifying a conclusion that his interests will not be adversely affected by removal from the UK, or will not be so adversely affected that that should prevail over the need to maintain the integrity of immigration control. I deal with each of these below.

Precarious immigration status
[16] Article 8 ECHR provides that everyone has the right to respect for his private and family life. The right is, of course, not absolute. It may be invoked by an applicant for asylum. Where it is so invoked, the decision maker is required to consider it carefully and weight it in the balance against the need to ensure an effective immigration policy. In the present case it is asserted, on behalf of the petitioner, that he, and his family, have established a private and family life in the UK and that to remove them would be a breach of their rights under Article 8. His application is supported by letters of support from a wide range of people involved in social and cultural life in Glasgow, including their involvement in the Bridging the Gap project. He appears to have established himself as a well-respected member of the community with no criminal record of any sort.

[17] In Razgar, Lord Bingham identified the steps which the decision maker and any reviewing court would have to go through in a case where removal from the UK was resisted in reliance on Article 8. He pointed out (at para.17) that 5 questions would usually have to be answered:

"(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?"

In the present case, as in Razgar, it is accepted on behalf of the Secretary of State that questions (1) and (2) are to be answered in the affirmative. Equally, it is accepted, as I understand it, on behalf of the petitioner that questions (3) and (4) are also to be answered in the affirmative. As is often the case, question (5) is the key. In dealing with this question, Lord Bingham said this at para.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. ... 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".

[18] It was made clear in Huang v Home Secretary [2007] 2 AC 167 at para.20 that Lord Bingham was not there purporting to lay down a test of "exceptionality". In Huang, at para.20, the House of Lords said this:

"In an article 8 case where this question is reached, [i.e. the severity and consequences of the interference with the right to family or private life], the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. ..."

Huang was a case of family life, but the remarks just quoted clearly apply equally to a case where the petitioner seeks to rely upon his right to a private life built up within the UK during his presence here.

[19] So far, this is uncontroversial. The striking of a fair balance between the rights of the individual and the interests of the community clearly involves a careful consideration of the facts of the particular case. That is now referred to as "anxious scrutiny". In the present case it is clear from the refusal letter that, in considering the petitioner's claim based upon the private life built up by himself and his family during his time in the UK, the Secretary of State has been much influenced by her characterisation of that private life as having been built up "in the full knowledge that his immigration status was precarious and [he] was liable for removal", to quote but one of the passages in which reference is made to this point. It is, of course, a perfectly proper response to a claim based upon the right to private life built up in the UK to say, in a particular case, that that claim to a right to respect for private life, having been built up in such circumstances, should not weigh strongly in the balance against the public interest in ensuring an effective immigration policy. But care needs to be taken when making such an assessment.

[20] Not every case where a private life is built up while awaiting a decision on an application for asylum is necessarily to be characterised as a private life built up "in the full knowledge that the applicant's immigration status was precarious". At the one extreme one may have a case, such as that which came before Lord Drummond Young in ME (FE) Petitioner [2012] CSOH 20, where the petitioner's asylum application, made within some two weeks of her arrival in the UK, was refused within a month of it being made, and the private life sought to be relied upon in support of a fresh claim over three years later was clearly built up against the background that her claim had been refused and she knew she had no right to remain in the UK. On the other hand, one may have a case such as came before the court in EB (Kosovo) v Home Secretary [2009] 1 AC 1159, where the applicant made a claim for asylum some four days after his arrival but the claim was not even dealt with until it was refused some four and a half years later. In such circumstances, where the applicant had no reason to know whether or not his claim would be successful, it is more difficult to dismiss the claim to a private life on the basis that it has been built up in the knowledge that the applicant's immigration status was precarious. It seems to me that, to any claim based upon a private life having been built up while the applicant was in the UK, it will seldom be appropriate to characterise it in black and white terms as counting for little because of the circumstances in which the private life has been built up. A more nuanced approach will usually be required.

[21] This approach is, to my mind, consistent with the approach taken by Lord Bingham in EB (Kosovo), at paras.14-16, in discussing the relevance of delay in the decision making process. He points out, first, that the longer the period of the delay, the more likely it is that the applicant may develop close personal and social ties and establish roots in the community, thereby strengthening his claim; and second, delay may be relevant in understanding that social and personal relationships between the applicant and others, although initially precarious, will over time become imbued with some expectation that they will be long lasting and possible permanent. These two factors show, to my mind, that there comes a point at which the criticism that a private life was built up during a period when the applicant knew or must have known that his immigration status was precarious can no longer hold good.

[22] It is, of course, not for the court but for the Secretary of State (in the first place), and the Immigration Judge (if the Secretary of State refuses the application and there is an appeal), to find the relevant facts and strike the fair balance between the rights of the individual and the interests of the community. I am satisfied, however, that in deciding to refuse the renewed application and in refusing to treat it as a fresh claim on the basis that there was no realistic prospect that an Immigration Judge would find in favour of the applicant, the Secretary of State erred in applying too rigid a categorisation in her determination of the weight to be placed upon the private life built up by the applicant and his family. For that reason, it seems to me that the decision must be reduced, leaving the Secretary of State to consider the matter afresh, giving due weight to the fact that for the first three and a half years of his stay in the UK, when he was building up his private life and making his social and personal relationships on which he now seeks to rely, the applicant was awaiting a first decision on his application for asylum and, on one view of the facts, could not fairly be regarded as someone who must have known from the beginning that his application was likely to be refused. He was not, in other words, someone who was playing the system, by appeal after appeal, in the hope that after some years of failed applications he would be able to add another string to his bow.

Best interests of the child
[23] The UK is a signatory to the Convention on the Rights of the Child. Article 3.1 of the Convention provides that:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration".

Article 5 requires States Parties to respect the responsibilities, rights and duties of parents:

"to provide, in a matter consistent with the evolving capacities of the child,

appropriate direction and guidance in the exercise by the child of the rights

recognized in the present Convention".

Finally, Article 12 provides as follows:

"1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law".

S.55 of the Borders Citizenship and Immigration Act 2009 requires the Secretary of State to make arrangements for ensuring that inter alia the functions of the Secretary of State in relation to immigration, asylum or nationality are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. That section gives effect to the obligations on the UK Government under the Convention.

[24] The obligation under Article 3 of the Convention is to make the best interests of the child a primary consideration. That means that the best interests of the child are not merely a relevant consideration in the decision making process but must be at the forefront of the decision maker's thinking. They are given, as Lord Carloway put it in HS v Secretary of State for the Home Department [2010] CSIH 97 at para.[15], "a hierarchical importance". That does not, of course, mean that they have to prevail over other considerations, but they weigh heavily in the balance. This was emphasised by Baroness Hale JSC in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 at para.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. 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. ..."

The decision letter in this case recognises that principal.

[25] There is always a question as to how to identify the best interests of the child, how to find out what they are. Despite the wording of Article 12 of the Convention, it is not always necessary for the decision maker to hear directly from the child, still less to require the child to be separately represented at any hearing. That is because in most asylum cases the interests of parents and child are unlikely to be in conflict. But, as Baroness Hale says at para.37 in ZH (Tanzania),

"...the immigration authorities must be prepared at least to consider hearing directly from a child who wishes to express a view and is old enough to do so".

Some guidance is given in the UK Border Agency Statutory Guidance referred to in para.20 of the decision in Secretary of State for the Home Department v MK [2011] UK UT 00475 (IAC) and in para.30 of the judgment of Wyn Williams J in R (TS) v Secretary of State for the Home Department [2011] Imm AR 1:

"Children should be consulted and the wishes of the children taken into account whenever practical when decisions affecting them are made."

That is not to say that the subjective wishes of the child will always be consistent with its best interest, nor that those wishes will always prevail. It is, nonetheless, important to find out the child's wishes. However, that is not the only reason for hearing from the child itself. The child may be the source of information which would enable the decision maker to assess for himself where the best interests of the child lie.

[26] The refusal letter in the present case deals with the position of the petitioner's son over nearly three pages. It is accepted that he was not interviewed, although he was clearly of an age where his views could properly be taken into account. This does not necessarily undermine the reasoning or the decision made by the Secretary of State. However, what is of concern is that on at least three occasions, in considering where the best interests of the son lay, the Secretary of State relies upon the lack of evidence about how he would get on if he were sent back to Iran. She says that no evidence has been produced which suggests that he could not continue writing and performing songs in schools in Iran; no evidence has been provided about why he could not continue onto higher education in Iran; and there was no evidence to suggest that he had become divorced from his culture whilst he has been in the UK. The letter then goes on to make judgments about there being, for example, no reason to believe that he would not be able to form similar friendships or private life in Iran to those which he had formed at school in the UK; and no reason to believe that he would not be able readily to readapt to living in Iran.

[27] It seems to me that these are all matters upon which the views of the child, albeit not determinative, would have been relevant. While the Secretary of State was under no absolute obligation to hear from the child himself, her decision whether or not to do so in this case ought to have been informed by, amongst other things, the fact that she was aware that there were important issues affecting his future education and social development, if he was returned to Iran, on which his input might well be thought likely to be of assistance. This point cannot be answered by saying that the parents could speak on his behalf and could have adduced more evidence than they did about his future educational and social prospects if he were to be removed from the UK; just as it cannot be held against the child that any right to a private life built up by his parents was built up in the knowledge that their immigration status was precarious, so too the child cannot be held responsible for any failures on the part of his parents to adduce evidence to show how he would be affected if made to leave. In failing to take information from the child, while admitting that there was a deficiency in evidence relevant to his case, the Secretary of State has, in my view, failed properly to carry out the duties placed upon her both by the Convention and by s.55 of the Borders, Citizenship and Immigration Act 2009. For this reason, too, I would reduce the decision of the Secretary of State and require her to reconsider the application in light of this judgment.

A further point
[28] Finally, these two arguments come together in the paragraph which I have quoted previously (see para.[14] above). I quote it again for convenience:

"Even if it were to be said that the best interests of [the son] was to remain in the UK that is a primary consideration and not the only one. It is not considered that the best interests of your client's son on this occasion outweigh the need to maintain an effective form of immigration control. Any private life [the son] and his family have built up have been against the backdrop of an extremely precarious situation with regards to their immigration status."

As was said by Baroness Hale in ZH (Tanzania) at para.33 (and see also per Lord Hope at para.44), the child is not to be blamed for any shortcoming in this respect. Whatever may be the proper approach to the private life built up by the petitioner, however justified it may be to say that that private life has been built up against the backdrop of an extremely precarious position with regard to his immigration status, that consideration cannot properly be weighed in the balance against the child. On this ground too I would reduce the decision.

Disposal
[29] For the reasons given above, I shall reduce the decisions of the Secretary of State for the Home Department dated 3 March 2011 and 30 January 2012. I shall reserve all questions of expenses.