Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 142
P318/13	OPINION OF LORD TYRE in the Petition of I E Petitioner; for Judicial Review of a decision by the Secretary of State for the Home Department ________________

Petitioner: Caskie; Drummond Miller LLP

Respondent: C Smith; Office of the Solicitor to the Advocate General

23 August 2013

Introduction

[1] The petitioner is a citizen of Nigeria who arrived in the United Kingdom in late 2009. On 7 May 2010 she claimed asylum in the United Kingdom; that claim was refused on 22 November 2010. Her appeal against refusal was heard by the Asylum and Immigration Tribunal on 21 December 2010 and dismissed on 21 January 2011. Her appeal rights became exhausted on 7 February 2011. Certain representations on her behalf were refused during 2012 with no right of appeal. On 1 October 2012, further representations were submitted on her behalf, with a request that these be considered as a fresh application for asylum and/or as a fresh claim based upon article 8 of the European Convention on Human Rights. By letter dated 9 November 2012, supplemented by a further letter dated 12 April 2013, an official acting on behalf of the Secretary of State for the Home Department ("the respondent") refused the petitioner's asylum claim and also her human rights claim and declined to treat either claim as a fresh claim with the effect of opening up an in-country right of appeal to an immigration judge. In this petition the petitioner seeks judicial review of the decision to refuse to treat the claim based on article 8 as a fresh claim. The decision to refuse to treat the representations as a fresh claim for asylum is not challenged.

The basis of the petitioner's article 8 claim

[2] Since her arrival in the United Kingdom, the petitioner has given birth to two children named P (born on 6 July 2010) and J (born on 16 May 2012). The petitioner avers that she does not know the identity of P's father. J's father is Fred Kingston, a Liberian citizen with whom the petitioner has been in a relationship since December 2010. Mr Kingston is a failed asylum seeker who, in August 2011, was granted Discretionary Leave to Remain ("DLR") in the UK for three years under the Case Resolution (or "legacy") scheme. The petitioner and Mr Kingston are unable to live together because the petitioner resides in accommodation provided by the National Asylum Support Service, but the petitioner avers that they are in a long term and stable relationship.

[3] The petitioner avers - and I do not understand this to be disputed - that if Mr Kingston remains in the UK until 2016, he will become entitled, in accordance with the respondent's current policy, to apply for Indefinite Leave to Remain ("ILR"). Were such an application to be successful, J would become entitled in terms of section 1(3)(a) of the British Nationality Act 1981 to be registered as a British citizen, whether or not he is then resident in the UK. Acquisition of British citizenship by J would in turn greatly enhance the prospects of the petitioner being granted leave to remain in the UK. There is, of course, no certainty that Mr Kingston will make a successful application for ILR in 2016: he might, for example, die before then, or commit an offence of sufficient gravity to be recommended for deportation (though it is stated on behalf of the petitioner that Mr Kingston has lived in Scotland for eight years without being convicted of any offence), or he might decide to return to Liberia.

The respondent's decision

[4] The petitioner's article 8 claim was presented, under reference to the decision of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, on the basis that it was in the best interests of her children that they and she should remain in the UK. In her letter dated 9 November 2012, the respondent assessed the claim against the provisions of the Immigration Rules and concluded not only that the requirements of the Rules were not fulfilled but also that there was no realistic prospect of an immigration judge coming to a different decision. In her letter dated 12 April 2013, the respondent considered the petitioner's claim by reference to criteria established by existing authority and reached the same conclusions. No challenge is made by the petitioner in these proceedings to treating this second letter as part of the respondent's decision in response to the petitioner's claim, and counsel's submissions on behalf of the petitioner focused largely upon the terms of the second letter. That letter began by quoting paragraph 353 of the Immigration Rules which is in the following terms:

"When a human rights or asylum claim has been refused or 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.

This paragraph does not apply to claims made overseas."

The letter then set out the well-known passages from WM (DRC) v Secretary of State for the Home Department [2007] INLR 126 and R(YH) v Secretary of State for the Home Department [2010] EWCA Civ 116 which describe the task of the respondent in "fresh claim" cases. Reference was made to the description of the test in R(AK (Sri Lanka)) v Secretary of State for the Home Department [2010] 1 WLR 855 as a case where there was "more than a fanciful prospect of success" before the immigration judge. At paragraph 8, the letter stated:

"For the reasons given below it is not considered that there would be a realistic prospect of an Immigration Judge coming to such a conclusion" [i.e. of allowing the petitioner to remain in the UK].

[5] The letter proceeded to address, as a first and separate issue, the best interests of the petitioner's two children, stating inter alia:

"11. Consideration has therefore been given to [P] and [J's] best interests... It is clear that their best interests would be served by remaining with their mother and there is plainly no suggestion that they should be separated from their mother.

12. [P] and [J] are citizens of Nigeria and there is no reason whatsoever to suppose that they would be unable to enjoy the benefits of that citizenship when they are returned to the country of their nationality. Given that your client has only been in the UK for approximately 31/2 years there is no reason to suppose she has become divorced from her culture, religion, the languages of Nigeria or the traditions of that country. In light of the age of your client's daughter and the fact that there is no reason to suppose that your client could not guide her children through all of the above when settling into life in that country, it is not considered that there is any reason to conclude that it would be against the best interests of [P] and [J] to go to Nigeria after taking those matters into account.

The respondent then quoted a passage from the Country of Origin Information Report on Nigeria regarding education, and noted that there was no suggestion that the petitioner's children would not receive an education in Nigeria. The view was expressed that removal would allow the children to develop relationships with their extended family in Nigeria and that such contact was in the best interests of the children. It was noted that there was no suggestion that either the petitioner or her children required any form of medical treatment or that they would be unable to support themselves in Nigeria as a family.

[6] The respondent concluded her assessment of the children's best interests as follows:

"17. Mr Kingston, who is a Liberian national, has discretionary leave to remain in the United Kingdom until August 2014 and therefore there is no reason why he could not accompany your client and her children to Nigeria where they could continue their family life. The Nigerian Immigration website (www.immigration.gov.ng) outlines the process for obtaining a visa for entry to Nigeria and also indicated that Liberia is a member of the Economic Community of West African States (ECOWAS). The ECOWAS Protocol states that nationals of ECOWAS member states have a right of residence in Nigeria. Accordingly it is considered that Mr Kingston could apply to go to Nigeria where he could continue his family life with your client and her children. Clearly it would be in the best interests of the children to have both your client and Mr Kingston with them in their country of nationality.

18. Your complaint appears to be that life would be better for your client's children in the UK as opposed to Nigeria. That may be correct but does not answer the question of what is in their best interests which require an evaluation of a number of different factors including the fact that your client has no right to remain in the UK and is to be removed. For all of the above reasons it is not accepted that it would be against the best interests of your client's children to go and live in Nigeria, the country of their nationality. It is not considered for the reasons given above that there is a realistic prospect of an Immigration Judge coming to a different conclusion."

[7] Having expressed her views regarding the best interests of the children, the respondent observed that the best interests of a child were a primary consideration but not the only one and that they could be outweighed by other competing factors such as the need to maintain immigration control. It was noted that an immigration judge would assess the petitioner's article 8 claim under reference to the principles established in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368. The letter continued:

"20. It is accepted that in the time she has been in the UK, your client will have established a private life and, as stated in our letter of 9 November 2012, it is accepted that family life exists with her children and Mr Kingston. Accordingly, it is considered that your client's removal would interfere with her private and family life in a sufficiently serious enough [sic] manner to engage Article 8(1). However, your client's removal would be in accordance with the law and would pursue a legitimate aim of maintaining immigration control.

21. It is noted that any relationships your client has formed in the UK have been developed in the full knowledge of her precarious immigration status. As discussed above it is considered to be in the best interests of your client's children that they return to Nigeria with their mother. It is also accepted your client and her children have formed a close relationship with Fred Kingston who is [J's] father. As Mr Kingston can apply to go to Nigeria where they could continue their family life, it is not accepted that there would be any disproportionate interference with family life if your client is removed."

The letter concluded that when all factors relating to the petitioner's article 8 rights were taken together, the balance was struck in favour of her removal, and such a removal would not constitute a disproportionate breach of article 8.

Argument for the petitioner

[8] On behalf of the petitioner it was submitted that the respondent had erred in law in failing to have any regard to the effect on the children's best interests of the prospect of Mr Kingston obtaining ILR in three years' time. The respondent ought to have acknowledged the likelihood that the family would be living in the UK after J had obtained British citizenship, and should have considered whether it was in the best interests of the children to be required to live in Nigeria for three years before returning to the UK. Reference was made to the observations of the House of Lords in Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 1420 to which, counsel submitted, the present case bore similarities. An immigration judge would have regard to that likelihood and there was more than a fanciful prospect that such a judge would conclude that it was in the best interests of the children to remain in the UK during the intervening three-year period. The respondent had also erred in law in failing to have any regard to Mr Kingston's article 8 rights. She asserted that he could accompany the petitioner and the children to Nigeria but failed to acknowledge that this could result in his losing his DLR and consequently any prospect of his obtaining ILR; nor did the respondent acknowledge that the Nigerian immigration law to which she referred required ECOWAS nationals to be in possession of an offer of employment in Nigeria when applying for residence. An immigration judge would not make those errors and there was more than a fanciful prospect that this might lead such a judge to reach a different conclusion regarding the likelihood of Mr Kingston accompanying the petitioner and the children to Nigeria, with a consequent effect upon assessment of the children's best interests.

[9] The respondent had made a further error of law in paragraph 18 of her second letter. Earlier in that letter (at paragraph 10) the respondent had referred to the decision of the Upper Tribunal (Immigration and Asylum Chamber) in MK (India) v Secretary of State for the Home Department [2011] UKUT 475 (IAC), in which it was held, under reference inter alia to ZH (Tanzania) (above), that the best interests of the child had to be addressed first as a distinct enquiry, and that factors relating to the public interest in the maintenance of effective immigration control must not form part of the consideration of the best interests of the child. By taking into account the removal of the petitioner in assessing the best interests of the children, the respondent had breached that injunction. She had used the product of the calculation to be carried out as a factor in its assessment: her reasoning was therefore circular and irrational.

Argument for the respondent

[10] On behalf of the respondent it was submitted that the petitioner's representations were properly characterised as not amounting to a fresh claim, as the petitioner would have had no realistic prospect of success before an immigration judge when they were considered along with all other previously considered material. In making this assessment, the respondent was entitled to place little or no weight upon the possibility that Mr Kingston would obtain ILR, and that J would consequently become entitled to British citizenship, because it was too uncertain: three years was too long a period to require an assumption on the respondent's part that Mr Kingston would not exclude himself from ILR by one means or another. The case of Chikwamba was not in point because the scenario in the present case was of possible return to the UK in some years' time: the family were not being required to go abroad on the basis of a technicality of immigration law, only to return immediately. If Mr Kingston were to travel to Nigeria with the petitioner and the children, he would retain his DLR for a period of two years. It was accepted that no account had been taken of any requirement by the Nigerian immigration authorities that Mr Kingston should hold an offer of employment there, but the petitioner had produced nothing to suggest that his prospects of employment there would be worse than in the UK where he was not in employment. Mr Kingston's article 8 rights had been considered in the context of the family as a whole, especially in paragraph 17 of the second letter. Whether he accompanied them to Nigeria or not was a matter for him.

[11] As regards the best interests of the children, both decision letters correctly treated this as a primary consideration and then went on to assess whether removal would be disproportionate interference with the article 8 rights of the members of the family. It was accepted that paragraph 18 was not well expressed but reading the second letter as a whole it was clear that the respondent's conclusion was that it was in the best interests of the children to live in Nigeria and that there was no realistic prospect of an immigration judge reaching a different view.

Decision

[12] In Dangol v Secretary of State for the Home Department 2011 SC 560 at paragraph 7, an Extra Division of this court made clear that the role of the court in challenges based on alleged failure by the respondent to comply with Immigration Rule 353 was as set out in FO, Petitioner 2010 SLT 1087, in the following terms:

"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 prospect 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 enquiry; 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 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.'"

So far as the anxious scrutiny requirement is concerned, I understand this to mean that the decision letter should demonstrate that no material factor that could conceivably be regarded as favourable to the claimant has been left out of account in the review of the evidence (Dangol at paragraph9). It is not the function of this court to form its own view as to whether an appeal to an immigration judge would have a realistic prospect of success.

[13] The first question is therefore whether in the present case the respondent has asked herself the correct question. I have already noted that the decision letter set out in full the passages from authority which explain the nature of the respondent's task. I have quoted the terms of paragraph 8 which afford a prima facie indication that the respondent has asked herself and answered the correct question. There is a further reference in paragraph 18 (quoted above) to the absence of a realistic prospect of an immigration judge coming to a conclusion different from that of the respondent, this time specifically in relation to assessment of the best interests of the petitioner's children. To this extent, therefore, I am satisfied that the first question in paragraph 11 of WM (DRC) (above) may be answered in the affirmative. Turning to the second question, I am also satisfied that there has been no failure by the respondent to meet the requirement of anxious scrutiny, in the sense in which I have defined it above. In particular, I consider that the respondent was entitled to take the view that the prospect of Mr Kingston obtaining ILR in around three years' time was sufficiently remote and uncertain that it should not be taken into account in her review of the evidence. So far as Mr Kingston's article 8 rights are concerned, and the rights of the petitioner and the children to family life, the respondent has had regard to and taken account of the possibility of Mr Kingston moving to Nigeria with the petitioner and the children. It is not for this court to form its own view as to the likelihood or otherwise of this occurring. I am not therefore persuaded that any material factor favourable to the claimant was left out of the respondent's review.

[14] Nevertheless, I consider that the respondent has erred in law. In my opinion, there is force in the submission on behalf of the petitioner that the respondent erred in her approach in paragraph 18 to evaluation of the best interests of the children, in that she treated the petitioner's immigration status, and in particular her removal from the UK, as a factor in answering the question of what was in the children's best interests. In the light of the decision of the Supreme Court in ZH (Tanzania) and the decision of the Upper Tribunal in MK (India), it seems to me that as a matter of law, as well as logic, the respondent was not entitled to proceed upon a factual assumption that the petitioner would be removed when assessing what was in the best interests of the children, with a view to deciding whether or not the petitioner should be removed. I have considered carefully whether paragraph 18 can simply be regarded, as counsel for the respondent submitted, as poorly expressed, but I have concluded that it cannot. The process of reasoning described in it is quite clear, and clearly wrong. Moreover it seems to me that the error is significant, given that the respondent began paragraph 18 by stating "Your complaint appears to be that life would be better for your client's children in the UK as opposed to Nigeria. That may be correct, but..." (My emphasis.) The implication of these words, as I read paragraph 18, is that if the respondent had not had regard to the fact that the petitioner had no right to remain in the UK and was to be removed, she might well - and I need not put it higher than that - have reached a different conclusion as regards what was in the children's best interests.

[15] The consequence of this error, in my opinion, is that the decision cannot stand. I do not, however, consider that the appropriate course of action for this court to take is to reduce only the respondent's decision refusing to treat the petitioner's representations as constituting a fresh claim. The error in paragraph 18 seems to me to infect not only the respondent's decision not to treat the representations as a fresh claim opening up a right of appeal, but also her own anterior decision to refuse the petitioner's article 8 claim. That being so, I consider that the appropriate course of action is to reduce the decision of the respondent contained in the letters of 9 November 2012 and 12 April 2013 refusing the petitioner's article 8 claim, with the consequence that that claim will require to be re-determined by the respondent rather than proceeding now by way of an appeal to an immigration judge. I shall grant decree of reduction accordingly.