Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 76
P592/11	OPINION OF LORD DOHERTY in the Petition AA Petitioner; for Judicial Review of decisions of the Secretary of State for the Home Department dated 27 May 2011 and 25 October 2011 Respondent: ­­­­­­­­­­­­­­­­­________________

Petitioner: Winter; Drummond Miller LLP

Respondent: MacGregor; Office of the Advocate General

3 May 2012

Introduction
[1] The Petitioner is a national of Pakistan. He claims to have entered the United Kingdom illegally in 1996. On 3 October 2000 he claimed asylum. He failed to attend his asylum interview. On 4 December 2000 his asylum claim was refused. On 20 April 2001 he was served with notice that he was a person liable to removal from the United Kingdom. He failed to maintain contact with the Home Office and on 6 July 2002 he was recorded as being an absconder from immigration control. On 20 November 2006 he was encountered during an enforcement operation. He had been working as a chef. He presented faded appeal papers dated 26 April 2001. There was no record of these ever having been submitted. He was served with new appeal forms. These were completed but sent to the wrong address. Eventually, on 22 May 2007 the appeal was lodged with the Asylum and Immigration Tribunal. On 31 May 2007 the Asylum and Immigration Tribunal directed that it did not accept the Petitioner's notice of appeal. The Petitioner submitted further representations on 14 February 2008. On 13 July 2010 the Respondent rejected the further submissions and determined that they did not amount to a fresh claim. The Petitioner brought judicial review proceedings challenging that decision. He did not insist on them and, on his motion, the Petition in those proceedings was dismissed on 10 May 2011.

[2] The Petitioner made further submissions dated 26 October 2010 and 23, 24 and 27 May 2011. The representations of 26 October 2010 comprised a very short covering letter from the Petitioner's agents enclosing some material "in support of an application for leave to remain in the United Kingdom based on legacy". The letter simply invited the Respondent "to consider all matters afresh" in light of the material enclosed. The new material was made up of two copy letters from accountants indicating that the Petitioner had worked on a casual basis for clients of theirs for a few months in 1996; a letter from a GP relating to the Petitioner's health; (skeletal) letters from individuals indicating they had known/had ties with the Petitioner since 1996; and SQA certificates, correspondence and other items relating to the Petitioner's involvement with Langside College from 2001. In that material the Petitioner's address was given as A or B in items pre-dating 30 July 2010 and as C on items dated on that date or later. The representations of 23 May 2011 constituted a statement of the Petitioner and a very brief covering letter. The statement set out the circumstances in which the Petitioner had left Pakistan. It indicated that he contacted his brother, M, after his arrival in the UK in mid-1996 but "did not get great help" from him at that time; that he became a good chef; that following his being encountered by Home Office officials his health has deteriorated; that his brother lived with his wife at address C; that the Petitioner was "currently residing with my brother who is looking after my basic needs. " The covering letter indicated that the statement "contains significant information which was not previously before the Secretary of State". There was no indication as to which parts of the information in the statement were significant and no explanation of why they were significant. The Petitioner's agents' letter of 27 May 2011 was in the following terms:

"... We would wish to make it clear that our representations of 26 October 2010 and 23 May 2011 are to be considered in terms of Rule 353 of the Immigration Rules. We note from your decision of 13 July 2010 that you felt there was insufficient information to prove our client's residence in the United Kingdom from 1996, and that there was an insufficient amount of compelling information to allow a decision to be made in our client's favour.

We would submit that the information you now have is sufficient and compelling ...

You will note that Mr A has now been in the United Kingdom for a period in excess of 14 years, and that your own rules make specific reference to long residency in similar circumstances.

We would submit that on any view, Mr A is very close to meeting the test and only the most detailed of scrutiny will be sufficient in this matter. We would also make the point that Mr A has never been in a position to put his Article 8 claim before an Immigration Judge and would submit that this is reasonable in the circumstances ..."

[3] On 27 May 2011 the Petitioner brought the present judicial review proceedings. On the same date the Respondent rejected the further submissions and determined that they did not amount to a fresh claim.

[4] On 25 October 2011 the Respondent wrote to the Petitioner's solicitors. The letter began:

"I refer to your letter of 24 May 2011 in which you have asked for your representations on behalf of your above named client to be considered as a fresh application for asylum and/or Human Rights and to our reply of 27 May 2011.

Further consideration has been given to the issues raised in that letter and the enclosures and this decision should be read together with our earlier responses of 13 July 2010 and 27 May 2011 ....

Your representations have been given further consideration with particular reference to Article 8 of the ECHR in view of Mr A's claimed long residence in the UK and the strength of his claimed family ties and private life here. "

The Respondent went on to give consideration to those representations and the previously submitted material. She determined that they did not amount to a fresh claim.

[5] On 2 November 2011 the court granted the Petitioner's motion to discharge the First Hearing set down for that day. Thereafter the Petitioner prepared four separate Minutes of Amendment. He was permitted to amend the Petition in terms thereof. Among the matters addressed he sought reduction of the decision of 25 October 2011, and the crave for reduction of the decision letter of 13 July 2010 was deleted. Statement 3 of the Petition as amended reads:

"3. That the Petitioner seeks:-

i. Reduction of the decision to refuse the Petitioner's fresh claim, dated 27 May 2011 and reduction of the Secretary of State's decision letter dated 25 October 2011; .... "

[6] The Petition came before me for a First Hearing.

Was the letter of 25 October 2011 a decision letter?
[7] Mr Winter's primary submission in relation to the letter of 25 October 2011 was that I should have no regard to it. It was, he contended, an illegitimate ex post facto rationalisation of the decision of 27 May 2011. Accordingly, I should ignore it (Absolom v Governor of H.M. Prison, Kilmarnock [2010] CSOH 109; Chief Constable of Lothian and Borders Police v Lothian and Borders Police Board 2005 SLT 315; R v Westminster City Council, ex p. Ermakov [1996] 2 All ER 302; R (P Richards & G Richards) v Pembrokeshire County Council [2004] EWCA Civ 1000).

[8] This submission sits uneasily with the Petition, which seeks judicial review of the letters dated 27 May and 25 October 2011, including "reduction of the Secretary of State's decision letter dated 25 October 2011" (paragraph 3 i.). The Petitioner admits (paragraph 2) that the Respondent gave further consideration to the Petitioner's further representations and issued another decision letter on 25 October 2011; and that all three decision letters require to be read together. In paragraph 6 he avers "On the 25 October 2011 the Respondent issued a new decision letter." It seems clear that all the Petitioner's averments, and his second plea-in-law, proceed on this basis. The only hint of a different position comes in an averment at the end of paragraph 12 (introduced very late in the day by the Petitioner's fourth Minute of Amendment):

"That the letter of 25 October 2011 should not be taken into account as it is inconsistent with the letter of 25 May 2011 (sic) as referred to above and as hereinafter condescended upon (see Absolom v Governor of HM Prison, Kilmarnock [2010] CSOH 109)".

[9] If this point was to be taken it could, and in my view ought, to have been dealt with at the First Hearing set down for 2 November 2011. The fact is that at that time both parties were proceeding on the basis that the letter of 25 October 2011 was a further decision letter. That was why discharge of the First Hearing and amendment of the pleadings was considered to be necessary.

[10] In any case, in my opinion the argument is not well founded.

[11] I do not accept Mr Winter's contention that the letter of 25 October 2011 is inconsistent in material respects with the previous decision letters (cf. Absolom v HM Governor of HM Prison, Kilmarnock; R v Westminster City Council, ex p. Ermakov; R (P Richards & G Richards) v Pembrokeshire County Council). In relation to two of the matters he relied upon (the Respondent's approach to the copy letters from the accountants and her response to the 14 years residence argument) I am wholly unpersuaded that the final decision letter was irreconcilable with the previous decision letters. In relation to the final claimed material inconsistency (concerning the treatment of the family life claim) there is an additional reason for rejecting Mr Winter's argument. In my opinion it was far from clear from the brief mention of M in the Petitioner's statement that the Petitioner was claiming to have a family life with him. The representations did not clearly focus and articulate any such claim. Clarification did not come until the present Petition for judicial review. Once it became apparent from the Petition exactly what the Petitioner's position was, it was understandable that the Respondent should have wished to reconsider matters and issue a further decision.

[12] In any event, I think it is clear that the letter of 25 October 2011 was not the elaboration and clarification of reasons for the earlier decisions. It bore to be, and in my opinion was, a further consideration of the representations which had been made with particular reference to Article 8 of ECHR in view of the Petitioner's claimed long residence and claims to have a family life and private life in the UK. It was a further decision. It is the most recent, and, for practical purposes, the effective, decision.

The other challenges
[13] The other challenges to the decision letters were (i) it was submitted that the Respondent had not asked herself the correct question; (ii) it was submitted that the Respondent had acted unreasonably et separatim irrationally in concluding that the further submissions taken together with the previously considered material did not create a realistic prospect of success before an Immigration Judge.

(i) The correct question

[14] 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 previously been considered: and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection..."

[15] It was common ground that the question the Respondent should have asked herself was that set out in WM (DRC) v Secretary of State for the Home Department [2007] Imm AR 337 per Buxton LJ at paragraphs 6 and 7:

"[6] There was broad agreement as to the Secretary of State's task under Rule 353. He has to consider the new material together with the old and make two judgements. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under Rule 353 (i) according to whether the content of the material has already been considered. If the material is not "significantly different" the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgement will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material ...

[7] The rule only imposes a somewhat modest test that the applicant has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, ... the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution ..."

[16] There was also no dispute as to the role of the court. In Kishor Dangol v Secretary of State for the Home Department 2011 S.C. 560 an Extra Division of the Inner House opined at paragraph [7]:

"... (T)he appropriate approach is that set out in the section of the FO, Petr [O v Secretary of State for the Home Department 2010 SLT 1087] opinion clearly headed 'The Law' as follows:

'As far as the role of the court is concerned, guidance is to be found in the judgment of Buxton LJ in WM (DRC), who having discussed the judgment of the court in Onibiyo [v Secretary of State for the Home Department [1996] QB 768], continued:

'[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 chance 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 inquiry; 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 in 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 conclusion 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,'

That is a clear and binding statement of the procedure that generally ought to be followed..."

[17] Mr Winter referred me to certain passages in both decision letters which he claimed indicated that the Respondent had fallen into error, viz. in paragraph 9 of the letter of 27 May 2011("... your latest submissions, taken together with the material previously considered in the refusal decision, would not have created a realistic prospect of success before an Immigration Judge.") (emphasis added); and on page 3 of the letter of 25 October 2011 ( "In summary it is not accepted that when weighing your client's length of residence in the UK and the strength of his private life against the legitimate aim of maintaining effective immigration control there is a realistic prospect that an immigration judge would find in Mr [A]'s favour.") (emphasis added). He suggested that by using the word "would" the Respondent had fallen into error and had applied the wrong test (MO v Secretary of State for the Home Department [2012] CSIH 20 at paragraph [34]).

[18] I have no hesitation in rejecting this contention. Mr Winter rightly accepted that the correct approach was to look at the whole terms of each decision letter to ascertain whether the Respondent had asked herself the correct question. On a fair reading of each of the decision letters as a whole I am satisfied that the Respondent asked herself the correct question. The present case is distinguishable in that respect from MO v Secretary of State for the Home Department.

[19] In MO the court observed (at paragraph [34]) that the language of part of paragraph 19 of the decision letter of 26 September 2009 disclosed that the Secretary of State had not asked the correct question. The relevant part was "It is not accepted that an Immigration Judge applying the rule of anxious scrutiny of the material, and of all the previously considered material, would reach a finding that there is a real risk of your client facing persecution or serious harm were he to be returned to Iran". (The punctuation of this sentence differs slightly from its quotation in MO - I have taken it directly from a copy of the decision letter of 26 September 2009). That formulation suggested a more demanding test than the test identified in WM (DRC) v Secretary of State for the Home Department at paragraphs [7] and [11] (for which see paragraphs [15] and [16] above).

[20] As I observed in RR v Secretary of State for the Home Department [2012] CSOH 67, in my respectful opinion the difficulty with the relevant passage in the decision letter in MO was that it contained no reference to the threshold of a realistic prospect of success. Had the passage read:

"it is not accepted that there is a realistic prospect that an Immigration Judge applying the rule of anxious scrutiny of the material and of all the previously considered material, would reach a finding that there is a real risk of your client facing persecution or serious harm were he to be returned to Iran"

it would, in my view, have complied with WM (DRC) and have been unexceptionable.

[21] The passages criticised by Mr Winter (see paragraph [17] above) contain no such error of omission. The threshold was correctly identified. Use of the word "would" in those passages appears to me to have been entirely apposite: what was being postulated was the prospects of success before a putative decision maker. Mr Winter's only criticism of the passages concerned the use of the word "would". It was not suggested that the passages were defective in any other respect.

[22] Accordingly, even if the proper approach is to focus on the criticised passages in the decision letters, rather than approach each letter reading it fairly and as a whole, the passages are consistent with the Respondent having asked herself the correct question.

[23] In reaching these conclusions I take comfort from the fact that there are numerous authoritative decisions where like formulations have been used by the court, or by the Respondent without any exception to them having been taken by the court: (see e.g. FO v Secretary of State for the Home Department, paragraph [25], [26]; Kishor Dangol v Secretary of State for the Home Department, paragraph [16]; R (MN)(Tanzania) v Secretary of State for the Home Department [2011] 1 WLR 3200, paragraph 32).

(ii) Irrationality

[24] The test to be applied by the court in a judicial review of a refusal to treat further representations as constituting a fresh claim is the Wednesbury test (Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223, per Lord Greene M.R. at pages 233-4). A decision by the Secretary of State will be irrational if it is not taken on the basis of anxious scrutiny (Kishor Dangol v Secretary of State for the Home Department at paragraph [7]; FO v Secretary of State for the Home Department at paragraphs [21]-[23]; MO v Secretary of State for the Home Department at paragraph [15]).

[25] Mr Winter maintained that there were several grounds upon which the court should hold that the Respondent's decisions had been irrational.

Apparent credibility
[26] Mr Winter submitted that the material submitted by the Petitioner had been apparently credible, and that the Respondent should have left it to an Immigration Judge to decide all matters of credibility and reliability. By failing to do so the Respondent had acted irrationally: she had not given the material anxious scrutiny.

[27] I do not accept that submission. It was open to the Respondent to form her own views on the material placed before her as a starting-point. It was for her to evaluate it and to determine whether on the basis of it there was a realistic prospect of success before an Immigration Judge. She was entitled to approach matters as she did. She did not act irrationally in doing so.

Late production of material
[28] Mr Winter next criticised the Respondent's reasoning in so far as she took account of the fact that some of the material which formed part of the representations was available earlier but was not produced then. He contended that this was an irrelevant consideration because there was no requirement under Rule 353 that material should not have been available earlier.

[29] Had the Respondent refused to consider material because it was available earlier that would have been an error of law on her part. There was no such error here.

[30] The Respondent was entitled to consider all circumstances which might have a bearing on the credibility and reliability of material, and the weight, if any, it should be given. It was open to her, in this connection, to have regard to the date material would first have become available and to any delay in its production. Those were relevant considerations.

Family life
[31] Mr Winter founded upon the fact that the Petitioner claimed to have a brother with whom he now lived and who was attending to his basic needs. Thus, while the normal emotional ties between adult siblings would be insufficient to amount to family life in terms of Article 8, here there was at least some suggestion of a cohabiting dependency, and the Respondent had been wrong to proceed on the basis that the Petitioner would not establish the existence of a family life were the matter to be fully explored before an Immigration Judge.

[32] Mr Winter accepted that for family life to be established between adult siblings there must be something more than the normal emotional ties. As an irreducible minimum of family life there must be something in the nature of a dependency, or of committed, real, or effective support (Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31, [2003] INLR 170). He did not suggest that the Respondent had not had regard to the correct principles. He submitted that she had erred in her application of them. He maintained that on the basis of the information in the Petitioner's statement it could not be said that there was no realistic prospect of an Immigration Judge finding that the Petitioner had a family life with M. While the information provided to the Respondent was brief, an Immigration Judge would have the opportunity to explore matters more fully. In the circumstances this aspect of the decision was irrational because it was not one which the Respondent ought to have reached applying anxious scrutiny.

[33] I am not persuaded that there was any error on the part of the Respondent in this regard. She applied the correct principles. She was entitled to decide as she did. Indeed, her conclusion is unsurprising having regard, in particular, to the fact that the claim to have a brother in the UK came very late in the day; to the absence of any supporting material from M; to the fact that it appeared help from M with the Petitioner's "basic needs" had been a relatively recent development; and to the paucity of the information provided by the Petitioner. In relation to that paucity it simply will not do to say that matters could be further explored if there were an appeal to an Immigration Judge. It was for the Petitioner to put before the Respondent the material on which his claim rests. In this connection I respectfully agree with the observations of Mr David Elvin QC, sitting as a Deputy Judge of the High Court, in R(Z) v Secretary of State for the Home Department 2009 WL 2173189:

"50. It is not the role of the fresh claim procedure simply to allow inferences to be raised in the absence of clear new information in the hope that something might subsequently be placed before an Immigration Judge which could lead to a favourable outcome. Even the modest test explained in WM and the requirement of anxious scrutiny are not met merely by raising the possibility of an investigation of unrevealed facts on what amounts to no more than a fishing expedition."

Residence for 14 years
[34] Mr Winter submitted that the new material, taken together with the previously submitted material, demonstrated that the Petitioner had been in the UK since 1996 - for more than 14 years. The Respondent ought to have proceeded on the basis that that material was apparently credible; and that removal of the Petitioner would be disproportionate given his length of residence.

[35] The Respondent was sceptical as to the Petitioner's claim to have been continuously resident in the UK since 1996, and considered that an Immigration Judge would approach matters similarly. In my opinion she was entitled to form those views in all the circumstances, including the Petitioner's immigration history, the skeletal nature of much of the material submitted with the further representations, and the date of their first production.

[36] In any event the Respondent also went on to consider matters on the hypothesis that there had been residence since 1996. In this connection Mr Winter submitted that it could be inferred from Rule 276B of the Immigration Rules that removal would be disproportionate and in breach of Article 8 where there had been 14 years residence in the UK. Rule 276B provides:

"Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom

276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom; or

(b) he has had at least 14 years continuous residence in the United Kingdom, excluding any period spent in the United Kingdom following service of a notice of liability to removal or of a decision to remove by way of directions...or of a notice of intention to deport him from the United Kingdom; and

(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking account of his:

(a) age; and

(b) strength of connections in the United Kingdom; and

(c) personal history, including character, conduct, associations and employment record; and

(d) domestic circumstances; and

(e) compassionate circumstances; and

(f) any representations received on the person's behalf; and

(iii) the applicant does not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974.

(iv) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application. "

[37] It was common ground that the Petitioner did not satisfy the requirements of Rule 276B. On 20 April 2001 he had been served with a notice that he was a person liable to removal. For the purposes of the Rule, the entire period after that date fell to be excluded when calculating the Petitioner's continuous residence in the UK. At best for the Petitioner, there would be five years qualifying continuous residence if he had been in the UK since 1996. In those circumstances Mr Winter, rightly, did not suggest that it was arguable that this was a "near miss" case ( as to which see the observations in MB [2010] UKUT 282 at paragraph 5; MM and SA (Pakistan: near miss)[2010] UKUT 481 at paragraphs 27,28; AI v Secretary of State for the Home Department [2012] CSOH 7 at paragraphs [22] and [39]). However, he contended that Rule 276B showed that removal was likely to be disproportionate where there had been 14 years continuous residence even if part, and indeed in this case by far the larger part, of that residence was after a relevant notice had been served: and that the Respondent had fallen into error in concluding that removal here would be proportionate.

[38] In my opinion the argument is untenable. The inference which Mr Winter seeks to draw from Rule 276B cannot reasonably be drawn. The Respondent rejected the argument along these lines which was made in the representations. I consider she was not only entitled to reject it - she was plainly right to do so.

Delay
[39] Mr Winter submitted that the Respondent had acted "unreasonably et separatim irrationally" in relying upon the maintenance of effective immigration control in the circumstances of the Petitioner's case. This, he argued, was because there were periods between 2006 and 2010 when the Respondent did not pursue effective removal action against the Petitioner. He relied particularly upon the delay between the representations of 14 February 2008 and the decision letter of 13 July 2010. He contended, somewhat faintly, that the Respondent's inaction and delay demonstrated that there was no effective system of immigration control to be maintained (Omar v Secretary of State for the Home Department [2009] 1 WLR 2265 per Moses LJ at paragraphs 8 and 32: EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159 per Lord Bingham of Cornhill at paragraphs 14-16; per Lord Hope of Craighead at paragraph 27; per Baroness Hale of Richmond at paragraph 32; cf Lord Brown of Eaton-under-Heywood at paragraphs 39-42). He acknowledged that similar arguments had been rejected in several recent Outer House cases, e.g. HS v Secretary of State for the Home Department [2011] CSOH 216 at paragraphs 32-42; MH v Secretary of State for the Home Department [2011] CSOH 143 at paragraphs [13]-[15] and [44]-[45]; SA v Secretary of State for the Home Department [2011] CSOH 162 at paragraphs [26]-[28], and [53]-[59].

[40] It is clear that there was delay by the Respondent in responding to the representations of 14 February 2008 . She acknowledged that delay and had regard to it along with the other circumstances of the Petitioner's case. On his own account the Petitioner had delayed four years from 1996 to 2000 before contacting the Home Office, and had failed to maintain contact for a further period of 4 years between 2002 and 2006. Following his detection on 20 November 2006 he had embarked upon an appeal. His appeal rights were not exhausted until 31 August 2007. At all times the Petitioner was aware that his residence within the UK continued to be precarious. None of the material in the representations showed that the period between 14 February 2008 and 13 July 2010 was of particular significance or importance in relation to the creation or fortification of rights to private or family life within the UK. Nothing in them demonstrated that during that period the Petitioner's residence in the UK became any less precarious; or that the sense of impermanence in his relationships with others within the UK faded; or that he was given the impression that he would not be removed but would be allowed to remain in the United Kingdom. It cannot be said that in the present case the delay identified by Mr Winter was a spectacular failure on the part of the Respondent, or that it formed part of a dysfunctional system which yielded unpredictable, inconsistent and unfair outcomes. In the whole circumstances there is no proper basis for inferring that there was no maintenance of effective immigration control in the Petitioner's case. In my opinion the circumstances of both Omar v Secretary of State for the Home Department and EB (Kosovo) v Secretary of State for the Home Department are readily distinguishable from the circumstances of the present case.

No previous substantive hearing before an Immigration Judge

[41] Mr Winter submitted that the Respondent had left out of account the fact that the merits of the Respondent's Article 8 claim had never been considered by an Immigration Judge. He maintained that the court should draw that inference because there was no specific mention of the point in either the decision letter of 27 May 2011 or the decision letter of 26 October 2011. It was not suggested that there was any other indication of a failure to have regard to it.

[42] I do not accept that I should infer from the absence of explicit reference to this matter that the Respondent has not taken it into account. First, it was not incumbent upon her to deal expressly with every point made on the Petitioner's behalf. Her reasons did not require to be elaborate or exhaustive. All that was necessary was a succinct and intelligible explanation dealing with the main points raised - of which this was not one. It was mentioned only in the final sentence of the Petitioner's agents' covering letter of 27 May 2011. Second, as the terms of the decision letters disclose, the Respondent was fully aware of the Petitioner's immigration history, including all the facts surrounding his appeal to an Immigration Judge. In my opinion in the whole circumstances it would be wrong to infer that the Respondent has left out of account the consideration that the merits of the Article 8 claim have not been adjudicated upon an Immigration Judge.

Conclusions
[43] The Respondent was entitled to decide that the Petitioner's further submissions did not amount to a fresh claim. Her decisions were rational and satisfied the requirement of anxious scrutiny. They were lawful.

Disposal
[44] I shall repel the pleas-in-law for the Petitioner and refuse the Petition. I shall reserve all questions of expenses.