Scottish Court of Session Decisions

Pursuer: Forrest; Drummond Miller LLP

Defender: J McGregor, Advocate; Office of the Advocate General

27 April 2012

[1] The petitioner is a national of Zimbabwe who arrived in the United Kingdom in February 2007. In terms of a student visa he was entitled to remain in the United Kingdom until November 2007. He did not leave when the visa expired. On 3 June 2010 he claimed asylum. That claim was rejected and the petitioner's appeal to an Immigration Judge was also rejected, that on 9 August 2010. The petitioner's rights of appeal became exhausted as at 24 September 2010. On 10 October 2011 he was detained by the respondent and sent first to Dungavel House, Immigration Detention Centre, Strathaven and thereafter to Colnbrook Immigration Removal Detention Centre in Middlesex.

[2] On 18 October 2011 fresh representations were made on the petitioner's behalf in relation to an alleged well-founded fear of persecution on the part of the petitioner if returned to Zimbabwe and also claiming that his rights under Article 8 of the European Convention of Human Rights (ECHR) would be unjustifiably interfered with should he be so returned. The petitioner's application to remain in the United Kingdom on the basis of those fresh representations was refused by a decision letter dated 24 October 2011 (No 6/2 of Process). It is that decision letter that is under challenge in these proceedings.

[3] At the hearing before me, the petitioner's claim was restricted to the treatment of his Article 8 claim. Having considered the submissions made and the material presented, I have decided that there is no merit in the petitioner's argument that the respondent erred in her approach to his claim.

The Petitioner's Claim
[4] This petition was raised initially as a matter of urgency to prevent a removal in October 2011 and the parts of the petition directed towards the decision to remove the petitioner from the United Kingdom at that time had been superseded by the time of the hearing before me. As indicated, the well-founded fear of persecution aspect of the case was no longer insisted in. The petitioner's claim was in respect of Article 8 of the ECHR and the relevant documents produced in support of that. 14 items had been produced in support of the Article 8 arguments, all of which post-dated the Immigration Judge's decision of August 2012. Accordingly the material was said to give rise to a fresh claim for asylum. The new information fell into three categories. First there were letters from Aberdeen University confirming that the petitioner was "an associate student" at that educational establishment between September 2008 and September 2009. However, as the letter was dated 10 September 2010 this was new material that had not been before the Immigration Judge who had not believed the petitioner's account that he had been a student. The second category were documents (no 6/6 and 6/7 of Process), illustrating the steps taken by the petitioner to become self employed. These documents also post-dated the Immigration Judge's decision. Thirdly, a series of letters had been produced confirming that the petitioner had made friends and that he attended a Catholic Church in Aberdeen.

[5] In relation to the decision letter itself, it was acknowledged that the relevant Immigration Rule, paragraph 353 was there set out together with a record of the further submissions made. It was accepted the paragraph 11 of the decision letter set out the appropriate test for the respondent, namely that of whether the new material, taken together with the previously considered material, created a reasonable prospect of success applying also the requirement of anxious scrutiny. In relation to the relevant test reference was made to Dangol v Secretary of State for the Home Department 2011 SC 560 at 564-565.

[6] The first main argument presented for the petitioner was that the respondent had erred in finding that there was no realistic prospect of success for the petitioner before another Immigration Judge based on the new material taken together with the old. It was contented that what the respondent had done was decided that the petitioner's claim would be bound to fail rather than looking at matters through the prism of an Immigration Judge would regard them. It was accepted that this was not a case involving family life. The petitioner's argument was that he enjoyed a private life in the United Kingdom. The respondent had accepted that a private life had been established but went on to reject the contention that interference with that Article 8 right would be disproportionate. The relevant passages of the decision letter in relation to Article 8 are paragraphs 38-58. Counsel for the petitioner criticised the decision letter for narrating a view that the skills the petitioner had gained in the United Kingdom could be used in Zimbabwe (para 48) noting that this was a matter another Immigration Judge would take into consideration whilst not cording any conclusion in that particular section on whether this would lead to a realistic prospect of success. Thus it was said that all the respondent had done was reach her own conclusion on the establishment of private life in the United Kingdom without addressing the issue of whether an Immigration Judge would so conclude.

[7] The second argument centred on the question of interference with the established private life. The respondent records in the decision letter that the petitioner's Article 8 rights had been considered alongside the case of Razgar v Secretary of State for the Home Department [2004] 2 AC 368. There, Lord Bingham had set out 5 issues to be identified considering the application of Article 8 of the ECHR to an argument against removal. The questions to be considered are stated in the following terms:

"In a case were 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?"

[8] It was accepted for the petitioner that the decision letter followed these five questions in turn. However, the conclusion at paragraph 57 of the decision letter that the Secretary of State considered that the petitioner's removal from the United Kingdom would be proportionate could be a starting point only. While it was also accepted that paragraph 58 then went on to address how an Immigration Judge, applying the rule of anxious scrutiny would view the matter, that paragraph was said to be "infected" by reference to an exceptionality rule. What the respondent had concluded was as follows:

"It is not accepted that your client's case is so exceptional that an Immigration Judge, applying the rule of anxious scrutiny, taking all these facts into account, would find that he would be exposed to a breach of Article 8 of the ECHR if returned to his home country".

[9] Reference was made to Huang v Secretary of State for the Home Department [2007] 2 AC 167. In that case it was clearly stated that where a removal or refusal of leave to remain amounted to a breach of the fundamental right protected by Article 8 would be unlawful and that the Immigration Authority would not in addition require to address whether or not the case met a test of exceptionality. It was argued that the respondent in this case had fallen into error by looking for the petitioner to meet an exceptionality test.

[10] It was argued that the respondent had erred because she had taken into account matters that she should not have relied on and had also failed to take into account matters she should have had regard to. Again reference was made in this context to Razgar and the questions identified by Lord Bingham. Particular reference was made to consider the legitimate aim in considering proportionalities. At first Counsel seemed to argue that there was no clear legitimate aim identified by the respondent in this case. He accepted, however, that the respondent, in paragraph 56 of the decision letter had referred to the guidance from Lord Bingham in Razgar where he had identified that:

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

The issue of legitimate public aim was not pursued further. Rather, what was contended was that there had been no sufficient analysis of the material produced by the petitioner in considering the final stage of the five questions test. Counsel accepted that the decision letter had scrutinised the correspondence produced from church members and others in paragraphs 49 and 50. However, it was argued that the context in which they were there scrutinised was a different context to the discussion of proportionality. It was claimed that the respondent ought to have considered and evaluated the further information again at stage 5 as she had done at stage 1. Thus she had regard only to the form of the test in Razgar rather than apply it in substance. In Z H (Tasmania) v Secretary of State for the Home Department [2011] 2 WL 148 reference was made to the difficult evaluative exercise which is required by Article 8 in such cases (see P 154 G). It was submitted that there had to be no such careful evaluative exercise in this case. In referring back to the paragraphs in relation to the attendance at Aberdeen University (45-46) these were criticised for a lack of discussion of whether or not the experience gained by the petitioner was relevant to the proportionality evaluation. Further, it was said that the respondent's view that the skills gained by the petitioner in the United Kingdom could be used in Zimbabwe was wholly irrelevant. What the respondent required to consider was the petitioner's private life in the United Kingdom. On the issue of the private life ties created, it was suggested that these had not been taken into account sufficiently, under reference to Uner v The Netherlands [2006] ECHR 873. The solidity of the social ties such as the church connections had not been fully considered.

The Respondent's position
[11] Counsel for the respondent sought refusal of the petition. He submitted that there were no errors of law, that the petitioner's unhappiness with the decision is not a basis for court intervention. So far as the legal test was concerned, Mr McGregor acknowledged that form of Wednesbury unreasonableness would require to be shown, that anxious scrutiny was required but that the whole of the decision must be looked at "in the round". Rule 353 required material significantly different to that presented previously and also the creation of a realistic prospect of success using that new material taken together with the previous material. It could not be said in this case that no reasonable Secretary of State would have reached the conclusion that had been reached. So far as the case of Dangol was concerned, it was clear that there was no difficulty with the respondent reaching her own view first and then going on to explain that for the same reasons she did not consider that an Immigration Judge would consider that there was such a realistic prospect of success. Thus the respondent's own view of the merits could be an appropriate starting point.

[12] So far as the Article 8 arguments were concerned, Counsel reiterated that this was a qualified right and there was no need to balance interference against the legitimate purpose being pursued. Effective immigration control is the legitimate purpose, something ultimately conceded on behalf of the petitioner. The case of Z H (Tasmania) was a very different one where the best interests of children were being dealt with. In the present case, the private life relied on amounted simply to be an ordinary attendee at a church. It is also essential to consider when that private life was formed. If it was formed when the party's immigration status was precarious, then that was extremely important. All of the letters in relation to the petitioner's attendance at church are dated in 2011 and indicate that each of the individuals in question have known the petitioner for about a year. By that stage the entirety of his claim had been rejected by an Immigration Judge and thus the petitioner's status was clearly precarious. Further the Immigration Judge had made numerous adverse credibility findings. The issue of persecution was no longer insisted in. All that was relied on was a private life for one year.

[13] Under reference to Konstatinov v Netherlands [2007] 2 FCR 194 it was said that there requires to be a significant factor in order to defeat the legitimate of immigration control. In this case the respondent has concluded that, weighing friendships at church on the one hand and immigration control on the other, the latter does not yield to the former. The petitioner's disagreement with that conclusion did not amount to Wednesbury unreasonableness. On the issue of proportionality and the analysis of the five questions posed in the case of Razgar, it was still clear that Article 8 rights were qualified and that the legitimate aim of immigration control must be considered. Lord Bingham had made clear in that case that it would only be in a small minority of exceptional cases that Article 8 rights would outweigh the legitimately of immigration control. It was accepted that exceptionality was not a test as such, but that there was no difficulty in referring to the word "exceptional" to explain the rarity of situations in which Article 8 rights will prevail over immigration control. It could not be regarded as "toxic phrase". Reference was made in this context to Huang. It could not be said in this case that petitioner's private life could not reasonably be expected to be enjoyed elsewhere. The issue of Article 8 rights in the context of immigration has been considered recently in the case of M E (F.E.) for judicial review [2012] CSOH 20. There, a very similar argument was presented on behalf of the petitioner in relation to Article 8 in a situation where the Secretary of State had commented that the case was not "so exceptional" that an Immigration Judge would find that Article 8 was contravened if the petitioner in that case was returned to her home country. The very argument being run by the petitioner in this case was rejected by Lord Drummond-Young in M E (F.E.).

[14] Turning to the application of the legal principles in the decision letter, the first matter raised was the petitioner's attendance at Aberdeen University. The period when he is said to have attended is between 2008 - 2009. However, historical attendance at a university was not relevant to an Article 8 claim some two or three years later. While it was accepted that the letters from the church groups were clearly relevant, the question was whether the Secretary of State was entitled to conclude that these did not bring the petitioner within the small minority of cases where such private life outweighed the legitimacy of immigration control. It was clear that the petitioner's immigration status was precarious when he met the Reverend Tony Schmitz (see no 6/9 of Process).

[15] In the decision letter no 6/2 of Process the writer identified the correct test. It was a question of whether that test was then properly applied. Paragraph 9 set out all the documents submitted by the petitioner. It was important to understand that the petitioner's challenge was one of irrationality rather than inadequacy of reasons. Thus it was more difficult to conclude that the respondent erred in law. The letter narrated everything considered, there was no new legal backdrop and all the cases now relied upon by the petitioner were considered, as recorded in paragraph 10 of the letter. Even the petitioner accepted that paragraph 11 of the letter set out a correct narration of the test. Thus it was acknowledged that the matter must be looked at through the prism of an Immigration Judge applying anxious scrutiny. The respondent had recorded that the previous material available must also be considered (paragraph 12). It was accepted that the new material was relevant. There was no question in this case of tainted documentation. There were examples of a willingness on the part of the respondent to look at the second stage of scrutinising matters through the prism of an Immigration Judge in paragraphs 29 and 37.

[16] Emphasis was placed on paragraph 39 where it was correctly recorded that Article 8 did not confer an absolute right and at paragraph 40 the petitioner's knowledge of his precarious immigration status when he formed various friendships was emphasised. The letter went to identify the correct principles from the Razgar case. It was appropriate to rely on the petitioner's lack of attendance at university since 2009. It could not be said that the issue of proportionality had not been dealt with fully. There was nothing wrong in highlighting that friendships can be maintained after removal from this country. Counsel acknowledged that the decision letter might be regarded as slightly imperfect in that it might have referred to the case of Huang having clarified the position in Razgar at paragraph 58. However, reading the letter as a whole, the respondent clearly knew of and referred to the decision in Huang. Thus there was no material point to be made of this. Again, the reference in paragraph 58 to the petitioner's case not being "so exceptional" that an Immigration Judge would conclude that there had been a breach of Article 8 is simply a reference to the petitioner failing to be in the small minority of cases where it might be said to be the result. However, even if an error could be identified, the petitioner would require to argue successfully that such an error was a material error, such that a different result might have ensued.

Discussion
[17] It is apparent from the decision letter No 6/2 of Process that the respondent has given detailed consideration to the one remaining argument for the petitioner in this case, namely that his Article 8 rights would be infringed were he to be returned to Zimbabwe. All of the new material is listed and considered and it is accepted both that private life here has been formed and that a return would interfere with that private life. The correct approach to the application of Immigration Rule 353 was adopted by the respondent as detailed in the decision letter at paragraphs 11 and 14, under reference to WM (DRC) and AR ( Afghanistan) v Secretary of State for the Home Department [2006] EWCA Civ 1495. The new material has been looked at together with previously available material to see whether there is a realistic prospect that an Immigration Judge, applying the rule of anxious scrutiny, would conclude that a return of the petitioner to Zimbabwe would constitute an unjustified interference with his rights under Article 8 of the ECHR. The five questions identified in Razgar are referred to and considered in turn. A balancing exercise is required in terms of which the recognised interference with private life is looked at in light of the legitimate aim of immigration control. Any interference must be proportionate by reference to that legitimate aim. Against the background of those legal tests, I must consider whether the decision reached in this case was one that no reasonable person in the respondent's position could have reached. To that end, two narrow issues require to be considered. First, can it be said that the respondent failed to consider matters from the perspective of an Immigration Judge rather than simply her own perspective? Secondly, on the issue of proportionality, is the respondent's decision " infected" by importing an exceptionality rule given the wording of paragraph 58 of the decision letter?

[18] I am satisfied that there is no basis whatsoever to support the argument that the respondent erred in the approach to looking at the matter from the perspective of an Immigration Judge. It is well settled that the Secretary of State may use her own view of the merits as a starting point, so long as it is simply a preliminary to considering whether an Immigration Judge, applying anxious scrutiny, might conclude there is a realistic prospect of success - FO, Petr 2010 SLT 1087, approved in Dangol. Reading the decision letter in this case as a whole, it is abundantly clear that the respondent was well aware of the test and the requirement to consider the perspective of an Immigration Judge. That requirement is referred to or applied directly or indirectly in several paragraphs of the letter, in particular paragraphs 11, 12, 20, 27, 28, 29, 37, 48, 49 and 58 all contain references to the way in which matters might be considered by an Immigration Judge. Some references simply record what an Immigration Judge would take into account, others refer to the conclusion that such a Judge would reach, applying the test of anxious scrutiny. I reject the contention that it is somehow inappropriate or erroneous for the respondent to have recorded what matters an Immigration Judge would take into consideration as part of a process of analysing the new material produced. It would be different had there been a failure on the respondent to state a clear conclusion on how the fresh claim as a whole would be treated by an Immigration Judge. That is not, however, the position here. The test is correctly stated and the various references to how another Immigration Judge might regard matters, coupled with a clear conclusion on what the result would be when that Judge applied anxious scrutiny to the matter, all serve to illustrate that there is no discernible error on the part of the respondent on this first issue.

[19] So far as the issue of proportionality is concerned, the main criticism was directed at paragraph 58 of the decision letter which is in the following terms ;

" After considering the case of Razgar it has been decided that returning your client to his home country would indeed be proportionate. It is not accepted that your client's case is so exceptional that an Immigration Judge, applying the rule of anxious scrutiny, taking all these facts into account, would find that he would be exposed to a breach of Article 8 of the ECHR if returned to his home country."

As the term " so exceptional" is used immediately following the reference to the case of Razgar, a question arises as to whether the respondent was effectively adverting to a rule that there is a category of "exceptional case" and that only if in that category would a claimant's Article 8 rights overcome the legitimate aim of immigration control when the balancing exercise was carried out. It is clear from the following passage in Huang that there is no test of exceptionality over and above the need to address proportionality and that Razgar did not impose such a test:

"In an article 8 case where [ the question of proportionality] is reached, the ultimate question for the appellate immigration authorities 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 appellant 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. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, be asked in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test."

There is little doubt, having regard the dicta quoted above that had the respondent indicated that an exceptionality test had to be applied she would have fallen

into error. However, I do not consider that the expression used in paragraph 58 of the decision letter is tantamount to the imposition of a legal test. While Huang is not referred to in that particular paragraph, the respondent was clearly aware of it, having specifically recorded that the petitioner was relying on it ( paragraph 8) and that it had been considered by the Immigration Judge who heard the earlier appeal (paragraph 10). In any event, I am of the view that the expression "so exceptional", where it is used in paragraph 58 is being used in the context of contrasting the petitioner's situation with that of the very small minority who might overcome the legitimate aim of immigration control by virtue of Article 8 considerations alone. It must be read in conjunction with the earlier statements about the petitioner being able to practice his religion and use his skills on a return to Zimbabwe. There is nothing in the petitioner's circumstances that would justify the balance tipping in favour of a finding that a return would constitute an unjustified interference with his Article 8 rights. The reference to his situation not being " so exceptional" is clearly akin to a finding in fact rather than any statement of a legal test. I note that a similar view was expressed by Lord Drummond Young in ME (FE) in a case where the respondent had also used the expression " so exceptional" in this context and I agree with the approach there taken. In this case there is no contention that the petitioner has established family life, only private life as a single man who has the recently established community of his church. It seems entirely appropriate that the respondent should contrast that with the more unusual case when expressing a view on what decision an Immigration Judge would reach.

Accordingly, I consider there is no force in the second argument for the petitioner and no error on the part of the respondent has been identified.

Decision
[20] For the reasons given, I will repel the petitioner's pleas in law, sustain the respondent's pleas in law and refuse the petition.