EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2013] CSIH 111
Lord Menzies Lady Clark of Calton Lord Clarke	P246/12 OPINION OF THE COURT delivered by LADY CLARK OF CALTON Reclaiming Motion in Petition of A.N. Petitioner and Reclaimer; against decisions of the Secretary of State for the Home Department Respondent: _______________

Act: Dewar QC, Winter; Drummond Miller LLP

Alt: Webster; Office of the Advocate General

12 December 2013

Summary

[1] This opinion relates to a reclaiming motion by the petitioner and respondent from the interlocutor of the Lord Ordinary dated 21 September 2012. The Lord Ordinary refused the prayer of the petition in which the petitioner sought to challenge two decision letters of the respondent dated 16 February 2012 and 20 March 2012 in which the respondent refused to treat further submissions made on behalf of the petitioner as a fresh claim in terms of paragraph 353 of the Immigration Rules.

History

[2] The history recorded by the Lord Ordinary in paragraphs 1 to 2 of his opinion was not in dispute. The Lord Ordinary narrated:

"The petitioner is from Malawi. He claims that his partner came to the United Kingdom in February 2005 in order to study. He states that he left Malawi in June 2006 and travelled to Ireland. After three months he came to the United Kingdom without entry clearance in order to join his partner. He returned to Ireland in January 2008 to continue studying. He claims to have made several trips to the United Kingdom in order to visit his partner and their daughter. In September 2008 he applied for a visa to visit the United Kingdom, but this was refused. In 2009 he returned to Malawi for a week and then came back to Ireland. In April 2010 he states that his cousin brought his two sons to Ireland to see him. Their mother is in Malawi and agreed that they could move to live with the petitioner.

[2] In June 2010 the petitioner and his sons came to the United Kingdom as his daughter, who was living with his partner, was ill. On 31 August 2010 he was encountered by immigration officials at his partner's home and was arrested. On 28 September 2010 he claimed asylum with his partner, their daughter and his two sons as dependents. That claim was refused on 1 November 2010. The petitioner appealed against that decision, but the appeal was dismissed on 24 December 2010. He applied for permission to appeal against that decision, and permission was granted on 2 February 2011. The appeal was considered before the Upper Tribunal, which dismissed it on 28 November 2011; the result was that the original determination by the Secretary of State was affirmed. Appeal rights were exhausted on 16 December 2011."

It is clear from the papers before us that throughout the proceedings the petitioner's application to remain in the United Kingdom has focused on his concerns relating to the welfare of his children if he is forced to return to Malawi. One of his sons is HIV positive and his daughter suffers from congenital heart problems. His present partner is also said to be HIV positive. His three children are of school age.

Further submissions

[3] A letter of further submissions dated 2 February 2012 was sent on behalf of the petitioner and reclaimer to the respondent. The further submissions made reference to health issues affecting family members and focused on problems relating to stigmatisation, discrimination, the risk of violence, unemployability and social isolation suffered by people with HIV in Malawi and the difficulties of obtaining medical treatment. Specific issues were also raised about the health issues of the daughter born in the UK on 25 March 2008. General issues about the best interests of the children were also raised. These included difficulties about providing for them and problems in relation to their education. By letter dated 16 February 2012, the respondent refused to treat the submissions as a fresh claim. By letter dated 2 March 2012, solicitors for the petitioner and reclaimer lodged further submissions which stressed the vulnerability of the family, threats to their life expectancy and problems of poverty in Malawi affecting the availability of necessary drugs and healthcare. The submissions were accompanied by various documents recorded in the appendix at pages 9 to 51 and pages 185 to 268.

The decision letters

[4] The decision letters were prepared by officials on behalf of the respondent. It was not in dispute that both decision letters required to be read together on the basis described by the Lord Ordinary in paragraph 6 of his opinion.

[5] In the decision letter dated 16 February 2012, the various documents enclosed with the further representations included a document entitled "HIV and Aids in Malawi" listed in paragraph 8. In considering the further representations, the respondent, as she was entitled to do, took into account prior evidence recorded within the reasons for refusal letter dated 28 October 2010 issued by the designated immigration judge. The respondent in paragraph 14 relied on the views of the designated immigration judge in relation to the health service and the availability of medical treatment in Malawi. Against that background the respondent considered the various documents made available. At paragraph 18 she commented:

"the third report is entitled 'HIV and Aids in Malawi'. There is no indication when this report was compiled, and there is no indication as to how this report is relevant to your client. It is noted that the report confirms, as found by the designated immigration judge at your client's appeal, that medication for those who are HIV positive is available. Indeed a very similar report was before the designated immigration judge at your client's appeal."

The respondent at paragraph 23 concluded "that there would be no breach of your client's article 3 rights by his removal from the UK." Consideration was then given to article 8. There was no specific consideration given to the best interests of the children.

[6] In the decision letter dated 20 March 2012, there is a list of the documents submitted for consideration in paragraph 9. In paragraph 18, the respondent again relied on the views and conclusions expressed by the immigration judge in said refusal letter dated 28 October 2010 about the health service provision and the availability of medical treatment in Malawi. That is the starting point for the respondent's consideration of the further material. At paragraph 33 the respondent concluded that:

"Taking into account that there are organisations available to help those who are HIV positive, that there are health services available for you and your family, the IJ's previous findings in the case law of N your submissions do not create a realistic prospect of success, under another Immigration Judge, applying anxious scrutiny."

There is then a consideration by the respondent of article 8 issues followed by a consideration which purports to be a consideration of the best interests of the children. In paragraph 49 the respondent concluded that:

"It is not considered to be contrary to the best interests of your client's children to return to Malawi or alternatively that the removal would be a disproportionate interference with the right to respect for their private lives."

In paragraph 50 the respondent concluded that:

"Even if it were to be said that the best interests of the children were 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 children on this occasion outweigh the need to maintain an effective form of immigration control..."

[7] The final conclusion of the respondent was that the submissions did not amount to a fresh claim.

The opinion of the Lord Ordinary

[8] The Lord Ordinary having set out the history considered in paragraphs 4 and 5 the general legal framework which applied under particular reference to WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495; AK (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 447; FO v Secretary of State for the Home Department 2010 SLT 1087 and Dangol v Secretary of State for the Home Department 2011 SC 560. There was no criticism of the general approach which the Lord Ordinary adopted. In paragraphs 15 and 16 consideration was given to the grounds of challenge adopted by the petitioner before the Lord Ordinary. As these grounds of challenge were reflected in the submissions made to this court albeit perhaps with different emphasis, it is sufficient to refer to the submissions made on appeal. At paragraphs 17 to 25, the Lord Ordinary set out his reasoning for rejecting the submissions made on behalf of the petitioner. He concluded in paragraph 26:

"...I hold that the two decision letters were lawful and reasonable, and took the relevant factors into account. They were in accordance with rule 353 of the Immigration Rules. The prayer of the petition is accordingly refused."

Grounds of appeal and submissions by counsel for the petitioner and reclaimer

[9] A number of different grounds of appeal were set out. Senior counsel for the petitioner and reclaimer adopted the detailed written submissions and it is necessary only to give a short summary thereof. The submissions fell into three main chapters.

[10] The first chapter dealt with criticisms of the approach taken by the respondent to the assessment of the best interests of the children. The Lord Ordinary considered that the respondent was entitled to reach the conclusions on the approach adopted and this was challenged by counsel. He directed his criticism to paragraphs 18-22 of the opinion of the Lord Ordinary.

[11] Senior counsel submitted that in the decision letter dated 20 March 2012, the respondent dealt with issues in separate compartments. In the chapter dealing with article 3, the respondent applied the principles in N v United Kingdom [2008] 47 EHRR 39. Counsel submitted however that said case law which may properly be applied to health issues in relation to article 3 was not appropriate to consider and apply in relation to the best interests of the children. N v United Kingdom applied a high test not applicable to a consideration of the best interests of the children. Senior counsel submitted that there was no proper and separate consideration of health issues in relation to the best interests of the children. The conclusions about said issues, as filtered through the perspective of N v United Kingdom, were merely carried over from article 3 to the consideration of best interests of the children without any new and separate analysis. He submitted that the medical and health issues relating to the children which were material considerations had in effect been left out of account when considering their best interests which was a primary consideration to be addressed by the respondent.

[12] Counsel further submitted that this inadequate and wrong approach filtered through the whole reasoning process of the respondent. Merely addressing the case on the hypothesis that the best interests of the children were best served by remaining in the UK, as the respondent did in paragraph 50, did not cure the deficiency in reasoning. By concluding that the best interests of the children are outweighed by the need to maintain an effective form of immigration control, the respondent had not properly appreciated the importance and significance of the health issues of the children when she carried out the balancing exercise.

[13] There was also some criticism of the Lord Ordinary's approach in his opinion in that he rejected submissions on behalf of the petitioner that the respondent had erred in the order in which she had considered the best interests of the children, as she had not considered the best interests of the children as a primary consideration.

[14] The second main chapter of the submissions related to criticism of the Lord Ordinary's approach set out in paragraphs 17 and 24 of his opinion in which he expressed the view that:

"...if a matter is not raised in the representations, expressly or impliedly, it is not necessary that it should be considered in detail by the Secretary of State in replying to the representations."

Counsel submitted that the Lord Ordinary erred in his approach in that he had failed to recognise that the respondent had not taken into account the country of origin information report. ("COI report").

[15] Finally, counsel submitted that at paragraph 25, the Lord Ordinary had erred in rejecting the submission that the respondent had expressed the wrong test when she stated that "an immigration judge would find that any interference in your client and his family's private life would be proportionate". Counsel submitted that a finding using the language "would find" was flawed and failed to reflect the position in MO v Secretary of State for the Home Department [2012] SCLR 544 at paragraph 34.

Submissions by counsel for the respondent

[16] Counsel for the respondent invited the court to refuse the reclaiming motion and adopted the written note of argument on behalf of the respondent. It is unnecessary to set that out in detail. In summary, counsel submitted that the Lord Ordinary was correct in the approach which he adopted to the various issues which underpin the grounds of appeal.

[17] In relation to the best interests of the children, counsel submitted that the Lord Ordinary was entitled to form the impression that the references in the decision letters to article 3, ECHR and the decision N v United Kingdom were essentially incidental to the respondent's decisions. The Lord Ordinary had assessed the adequacy of the respondent's reasoning on the basis of substance rather than form and was entitled to conclude that the respondent had properly considered the best interests of the children. The order of consideration was irrelevant provided the best interests were addressed before a decision was reached in the balancing exercise. Reference was made to FZ v Secretary of State for the Home Department [2012] CSIH 87 at paragraph 17.

[18] In relation to the criticisms made of the Lord Ordinary in relation to the COI report, counsel submitted that the respondent was required to address issues presented by a claimant. The decision of the respondent was one that was reasonably open to her taking into account the information presented on behalf of the petitioner and taking into account the country of origin information report. Reference was made to R (Iran) v SSHD [2005] Imm AR 535.

[19] Finally it was submitted that the Lord Ordinary was entitled to reach the conclusion that the respondent had applied the correct test. Reference was made to AA v SSHD 2012 CSOH 76 at paragraphs 18 to 19.

Discussion

[20] There was no dispute in this case that the principles to be drawn from the decision in N v Secretary of State for the Home Department are applicable to decision making in relation to the article 3 issue in this case but not in relation to the issue of the best interests of the children. We are of the opinion, however, that the Lord Ordinary was entitled, for the reasons expressed by him, to form the impression on the substance of the decision making that the respondent had taken into account health and medical issues relating to the children when she came to address the issue about the best interests of the children. We note in particular that the Lord Ordinary relied on the factual finding at paragraph 30 of the decision letter dated 20 March 2012 which stated:

"HIV/Aids are managed well in Malawi and the objective information shows there is indeed treatment and support available for your family on return."

Had the issues in the appeal gone no further, we would not have been disposed to interfere with the Lord Ordinary's decision.

[21] During the course of discussion with counsel about the second issue relating to the use of the COI report, we had some difficulties in understanding the approach which had been adopted by the respondent resulting in her finding in paragraph 30 of the decision letter dated 20 March 2012 when compared with the COI report available to the respondent in February and March 2012. The respondent relied on and took into account the findings of the immigration judge dated 24 December 2010. The immigration judge did not list the material available to her as at 24 December 2010 but did make certain findings about the health service in Malawi in paragraphs 37 to 39. These findings are specifically referred to by the respondent in the decision letters. Specific reference is also made to the findings in fact of the immigration judge in paragraphs 18, 28 and 29 of the decision letter dated 20 March 2012. Whatever the information available in 2010, it appears that the COI report for Malawi dated 26 August 2011 postdates the information available to the immigration judge at the time of her decision.

[22] The COI report dated 26 August 2011 was available at the time of the decision letters in February and March 2012. Said report is contained in pages 57-150 of the appendix. It is stated in paragraph (i) that the COI report was produced by the COI service United Kingdom Border Agency (UKBA) for use by officials involved in the asylum/human rights determination process. The report provides general background information about the issues most commonly raised in asylum/human rights claims made in the United Kingdom. The main body of the report includes information available up to 31 July 2011. The "latest news" contains further brief information on events and reports accessed from 1 August 2011 to 25 August 2011. It is acknowledged in the report that there may be discrepancies between information provided in different source documents. It was not disputed by counsel for the respondent that this information was available or ought to have been available to the respondent at the time of the decisions in 2012. His position was that the decisions made by the respondent were reasonably open to her taking into account the information available.

[23] According to paragraph 2.06 of the COI report, Malawi is one of the poorest countries in the world with an estimated 75% of the population living on less than 60p a day. Malawi is heavily reliant on aid and the aid budgets had been cut. In paragraph 23.01 it is recorded that:

"...poverty continues to be chronic and widespread and the country development is thwarted by a fast growing population, limited arable land, cyclical natural disasters, food insecurity, malnutrition, HIV and Aids and a high instance of malaria, one of the leading killers of children under the age of five...."

In paragraphs 23.22 to 23 there are concerns expressed about limited access, poor quality of healthcare facilities and critical shortage of healthcare personnel. It is recorded that one in eight children are still dying, mostly of preventable causes. It is also recorded that:

"one in every five Malawians lives in ultra-poverty or on less than...0. 20 US cents a day and cannot afford to feed themselves. Poverty hits children the hardest and threatens their most basic rights to survival, health and nutrition, education, participation and protection from harm and exploitation."

In paragraph 25 there is an overview of available medical treatment and drugs. It is noted in paragraph 25.05 that the health sector is nearly entirely donor funded with foreign aid covering about 90% of the costs of all medicines. Reference is made to recent cuts in aid making a difference because Malawians do not have the means to buy most drugs. This is against a background where drug shortages were a problem even before funding freezes. In paragraph 25.07 it is recorded that thousands of people eligible for HIV/Aids treatment are not receiving it. In 25.08 there is reference to a new treatment regime which is more expensive exacerbating problems of obtaining treatment. Paragraph 23.18 to 23.21 deals with education. The conclusion is that:

"...the quality of education provided is very poor and pupil attainment levels are very low. The internal efficiency of the system is a serious problem as the level of drop out and repetition rates are very high."

[24] When we came to consider the COI report we were unable to understand how the conclusion of fact in paragraph 30 fitted with the COI report available to the respondent at the time of the decisions in 2012. The decision letters make no specific reference to the COI report of 2011 nor to any consideration of that information by the respondent. Counsel for the respondent submitted that in paragraph 18 the respondent referred to "the third report entitled 'HIV and Aids in Malawi'" and submitted that said report was part of the COI report. When we considered the way in which the respondent referred to this report, it appeared to us that she was unaware that this information formed part of the COI report. We consider that it is plain from the COI report that there has been a deterioration in the situation in Malawi, according to the COI report, because of reduced foreign funding and there have been changes in the Aids medical regime. It appears from the COI report that there may be many problems potentially faced by the children if they return to Malawi. On a fair reading of the decision letters of February and March 2012, we are unable to be satisfied that the decision maker has taken into account the information in the COI report.

[25] To the extent that the Lord Ordinary considers that it was unnecessary for the respondent to consider and address these issues, under reference to the COI report we disagree. If one takes into account the COI report dated 26 August 2011, the particular concerns raised by the petitioner in further submissions about the circumstances of his children and his ability to care for his children in Malawi are put into a context. While we accept that some of the issues raised by the petitioner are based on his subjective concerns, his concerns may be validated and more weight may require to be given to them if properly understood in relation to the country conditions as at the date of the decision letters. The petitioner and reclaimer is plainly concerned about a number of issues bearing on his childrens' welfare including education, healthcare and his ability to feed and look after his children in Malawi. One of his children is a girl under 5 years who has never lived in Malawi. Her previous medical history and need for continuing medical check-ups may be thought to increase her vulnerability in Malawi standing the reported conditions in that country. We consider that the issues raised by the petitioner and reclaimer are all matters which require to be considered in relation to the best interests of the children taking into account the COI report available at the date of the decision making. We cannot be satisfied on the information before us that the respondent has addressed the up to date COI report and its significance to the particular circumstances and best interests of the children. We agree with the Lord Ordinary that not every consideration or difficulty referred to in a COI report requires to be addressed but we consider that the factual background in the COI report relevant to the issues raised is material. To that extent therefore we consider that the Lord Ordinary has erred in his conclusion that the respondent has not left out of account any relevant and material issue.

[26] In conclusion, we support the approach of the Lord Ordinary in paragraph 25. We agree with the Lord Ordinary that the reference by the respondent to the test that "an immigration judge would find that any interference in your client and his family's private life would be proportionate", is wording which could be improved. On a fair reading of the decisions, however, we consider that the respondent has not applied the wrong test. We are of the opinion that the substance and meaning of the decision is important and consider that the Lord Ordinary was entitled so to conclude. We are also of the opinion that the analysis adopted by the Lord Ordinary in AA v SSHD at paragraphs 20-26 is a helpful and useful approach.

The decision of the court

[27] For the reasons expressed, we grant the reclaiming motion. We sustain the first and second pleas-in-law of the petitioner, reduce the decisions of the respondent dated 16 February 2012 and 20 March 2012, and remit to the respondent for further consideration in light of this opinion.