Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 48
P109/13	OPINION OF LORD BOYD OF DUNCANSBY in the Petition of HHG Petitioner; for Judicial Review of a decision by the Secretary of State for the Home Department ________________

Petitioner: Irvine; McGill & Co

Respondent: Duthie; Solicitor to the Advocate General for Scotland

12 March 2014

[1] This is a petition for judicial review of a decision by the Secretary of State for the Home Department (the respondent) to refuse the petitioner Indefinite Leave to Remain (ILR) under the case resolution programme (CRP).

[2] The petitioner is an Iraqi national. He came to this country in 2002 and later that year claimed asylum. This was refused but he was granted Exceptional Leave to Remain (ELR) until 27 May 2006. On 8 March 2006 he was convicted in the sheriff court on a summary complaint of indecently assaulting three 14 year old girls. Sentence was deferred for him to be of good behaviour and he was made subject to the notification requirements under the Sexual Offences Act 2003, colloquially known as being placed on the Sex Offender Register. On 9 May 2006 the petitioner made an application for ILR. It is a requirement of such applications that the applicant disclose any criminal convictions. The petitioner disclosed a road traffic conviction but failed to disclose the conviction for indecent assault. When he appeared before the sheriff on 27 June 2007 in respect of the deferred sentence he was admonished and he was removed from the Sex Offender Register.

[3] On 5 September 2008 the application for ILR was refused and he was served with a deportation order. The two decisions were contained in a single letter. Accompanying that letter was a statement of reasons which applied to both decisions. In essence they were both made on the basis of his conviction for indecent assault against three 14 year old girls. It is understandable that both the decision to refuse ILR and to deport the petitioner were made at the same time and on essentially the same grounds. However the decision to communicate both decisions and the reasons therefor in the same letters led to an unfortunate confusion in the mind of the respondent of the statutory basis for each decision. They are different. A decision to refuse ILR is made under the Immigration Rules (IR) and in particular paragraph 322. Extradition is dealt with under section 3 of the Immigration Act 1971 (the 1971 Act). Notwithstanding that the statement of reasons declares

"in view of your conviction for Sexual Assault on three 14 year old girls this application (the application for ILR) has been refused and a decision taken to initiate deportation action against you under paragraph 322(5) of the Immigration Rules."

It was of course perfectly permissible to refuse ILR under paragraph 322(5) of the IR but not the decision to deport. The letter later states that

"It has been decided to refuse your application for indefinite leave to remain in the United Kingdom as your presence would not be conducive to the public good."

Paragraph 322(5) of the IR states that leave to remain in the United Kingdom may be refused on the ground of

"(5) the undesirability of permitting the person to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C), character or associations or the fact that he represents a threat to national security."

[4] Section 3(5) of the 1971 Act provides that the Secretary of State may deport a person who is not a British citizen if she "deems his deportation to be conducive to the public good". So the reference to the petitioner's presence not being conducive to the public good should be in relation to the decision to deport, not the decision to refuse ILR.

[5] It is clear that the same reasons may found a decision under paragraph 322(5) to refuse ILR and a decision to deport on the ground that his deportation would be conducive to the public good. The respondent's position is however that there are two separate decisions and that it is possible for different results to emerge from the same circumstances. That being the case it is unfortunate that at the start of this process the respondent chose to intermingle both the reasons and the statutory basis of the decisions.

[6] The petitioner appealed to the Asylum and Immigration Tribunal (AIT). I was shown the grounds of appeal. They do not state whether the appeal is against either the refusal of ILR or the deportation order. The grounds however quote the Home Office reference number and case outcome ID which appears to apply to both decisions. Whatever the intention the appeal was heard on 9 January 2009 and the determination was published on 21 January 2009. The AIT allowed the appeal against the deportation order. Nothing is said about the application for ILR. Miss Irvine, for the petitioner accepted that the appeal was confined to the deportation order. Neither party appealed against the determination.

[7] There matters rested for some time. The petitioner apparently instructed new agents who began correspondence with the UK Border Agency regarding his status. In particular they wrote to the Agency on 18 August 2011 requesting a final decision on the petitioner's case under the CRP. The Agency replied to the petitioner on 26 April 2012. That letter stated,

"I am writing to inform you that your case has now been fully reviewed by CRD (Case Resolution Directorate) and the outcome is that you have no basis for stay in the United Kingdom. Please note that the appeal allowed was in relation to the Deportation Order only and that the decision of 5^th September 2009 (sic) to refuse Indefinite Leave to Remain was maintained."

No reasons were given in that letter for that decision.

[8] The petition as originally framed was against that decision. It appears however that there was in the interim further correspondence and the petitioner was invited to make fresh representations. I understand that the petitioner declined to do anything further than rest on the points made in the petition. In any event the respondent issued a fresh letter dated 17 May 2013 which contains detailed reasons for maintaining the decision to refuse ILR. The respondent however reiterated that no information had been received about the petitioner's current circumstances including the extent and quality of his private life and his integration. It remained open to the petitioner to make further representations on these matters and on receipt a further decision would be made. To date no further representations have been made.

[9] The petition and answers have been amended in light of these developments and it is accepted that it is the decision letter of 17 May 2013 which is now the operative decision of the respondent. The letter informs the petitioner that further consideration has been given to his application for ILR. The letter notes paragraph 322(2) of the IR which gives as a ground for refusal the failure to make false representations or declare any material facts in an application for inter alia ILR. The application for ILR makes it clear that all criminal convictions must be disclosed. The statement of reasons for the decision to refuse ILR and to deport the petitioner made reference to the failure to disclose the conviction as background. However on a proper reading of the statement of reasons it does not appear to have been a material consideration in 2008. The letter of 17 May 2013 noted that at the time of the application for ILR the conviction was not spent. Paragraph 14 of the letter is in the following terms,

"The Secretary of State regards sexual offences committed against children as being particularly abhorrent to society and she has a responsibility to consider the effect of your client's offending on the wider community. Whilst it is noted that the Immigration Judge at the deportation appeal hearing stated that the sentence was at the lower end of the scale it remains a fact that he was convicted of a sexual offence against children. It is considered that this is not conduct which is desirable in a person applying for Indefinite Leave to Remain in the United Kingdom and his application fell for refusal under Immigration Rule 322(5). When this is taken with his attempt to hide his conviction from the Secretary of State and the fact that no reason was put forward about why he could not return to Iraq, discretion should not be exercised in his favour,"

[10] Immigration Rule 322 deals inter alia with grounds on which leave to remain in the United Kingdom should normally be refused. IR 322(5) referred to above deals with the understanding of permitting the person to remain in the UK in light of his conduct including previous convictions. IR 322(2) states,

"the making of false representations or the failure to disclose any material for the purpose of obtaining leave to enter or a previous variation of leave or in order to obtain documents from the Secretary of State or a third party required in support of the application for leave to enter or a previous variation of leave."

[11] In the course of the first hearing an issue arose as to whether the provisions of the Rehabilitation of Offenders Act 1974 applied to the conviction and whether the respondent was entitled to take it into account when reaching her decision. I invited Miss Irvine, if she wished to do so, to submit any further written submissions on the matter following the first hearing. In fact I obtained extensive written submissions from her and Mr Duthie for the respondent which raised new matters including the effect of the sections 140 and 141 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("the 2012 Act"). Accordingly I put the matter out by order for further submissions.

Submissions for petitioner

[12] Miss Irvine submitted that in reaching her decision the respondent had failed to take into account a relevant matter, which she said was the decision of the AIT of 21 January 2009. If it had been taken into account she had failed to give adequate weight to a relevant factor. Further she had failed to give adequate reasons for her decision.

[13] In her written submissions prepared for the first hearing Ms Irvine made the following propositions:

·     

"

The relevancy of a given factor is a question of law for the court. Whether or not a particular decision is vitiated by a failure to (properly) take a relevant factor into account will depend on the circumstances of the case, including the source of the information, its relevance, materiality, and the fact of its communication: City Cabs (Edinburgh) Ltd v City of Edinburgh District Council, 1988 SLT 184 at 188F (Lord Cullen).

·      The question of the weight to be attributed to a given factor is primarily one for the decision-maker. The court is nonetheless entitled to interfere where the weight which has been attributed is manifestly inadequate: R (BT3G Ltd) v Secretary of State for Trade and Industry [2001] Eu LR 325 at 371H (Silber J).

·      The decision-maker is not free to marginalise something to which obvious importance has been attached: R (Von Brandenburg) v East London & The City Mental Health NHS Trust [2002] QB 235 at 253H [41] (Sedley LJ).

·      Where there is a previous decision in proceedings between the same parties and the same question arises in subsequent proceedings, as a general principle of public law the previous decision is likely to be the starting point for the subsequent enquiry: Secretary of State for the Home Department v AF (No. 2) [2008] 1 WLR 2528 at 2540F [37] (Sir Anthony Clarke MR).

·      The phrase 'non-conducive to the public good' should be construed consistently: Where an individual does not satisfy the 'non-conducive to the public good' ground for deportation, that fact is, at minimum, a highly relevant factor to be taken into account in considering whether or not a refusal of leave on the same 'non-conducive to the public good' basis is justified: Olufosoye v Immigration Officer, Heathrow [1992] Imm AR 141 at 147.

·      An obligation to give reasons may arise by force of the common law. Reasons may be required in the context of an extra-statutory immigration decision as a simple matter of fairness: HJW v Secretary of State for the Home Department [2012] CSOH 159 at [48] ("HLW"). No principled distinction falls to be drawn, however, as between the substance of reasons required under statute or by operation of the common law: Clyde & Edwards, Judicial Review (W Green, Edinburgh 2000) ("Clyde & Edwards") at [18.66]. Rather, the extent as well as the substance of the reasons must be determinded by the circumstances of the case: Clyde & Edwards at [17.26]; cf. HLW at [53].

·      Where the factor at issue is a decision in a case between the same parties which raises the same or a similar point, the duty owed by the subsequent decision-maker to take the views of the previous decision-maker into account means nothing whatsoever unless he has to engage with what the previous decision-maker has said: M v Secretary of State for the Home Department [2003] 1 WLR 1980 ("M") at 1989F [18]. A subsequent decision-maker is, if he chooses to depart from the views of the previous decision-maker, accordingly required to explain why he disagrees: M at 1989H [19]."

[14] In developing her submissions Miss Irvine took me to the respondent's letter of 5 September 2008 and the reasons for the decision accompanying the letter. As noted above the reasons for both the decision to deport and to refuse ILR were essentially the same. That was not surprising standing the respondent's guidance contained a document, "Exceptional Leave to Remain: Circumstances in which it will not be appropriate to grant settlement." She submitted that this guidance showed that the criteria for granting ILR and determining whether a person should be deported were essentially the same. The linkage was confirmed by the terms of the reasons accompanying the letter of 5 September 2008. So far as the issue of non‑disclosure of the conviction is concerned she submitted that that had not been founded upon in the decision to refuse ILR and to deport the appellant. Although it was mentioned in the paragraph dealing with background it had not featured in the reasoning. Miss Irvine accepted that it did appear as part of the reasoning in the decision letter of 17 May 2013 but she submitted the basis for the decision was his conviction and not non-disclosure. She submitted that standing the fact that both decisions are taken on the same grounds and that the grounds are satisfied on the same basis i.e. the conviction, it followed that the outcome of both decisions should be the same. The distinct legal meaning of deportation was not disputed but in this case the same considerations applied to both decisions. It followed therefore that the respondent should have followed the decision of the immigration judge in determining the issue of ILR. At the very least that decision ought to have been afforded greater weight than it was.

[15] Miss Irvine further submitted that there were inadequate reasons given for the decision not to follow the decision of the AIT. Paragraph 12 of the letter of 17 May 2013 merely said that while the decision of the AIT was taken into account it was not considered necessary to alter their decision. Paragraph 8 of the letter marginalised the decision of the AIT to an extent that they were not entitled to do. She then referred to the nature of the conviction which she said was now spent under section 5(2) of the 1974 Act. Although there was reference to the fact that the conviction was spent in paragraph 15 of the 2013 letter it had not been properly taken into account by the respondent. Finally she submitted that in conducting the review in 2013 the respondent should have considered the spent nature of the conviction as an exceptional circumstance under Rule 353B of the Immigration Rules.

[16] For the respondent Mr Duthie accepted that the two decisions may well have been based on the same conduct but were not based on the same criteria. There was a difference between ILR and deportation. Although the tests were different there was ample scope for overlap. So far as the particular issues were concerned he accepted that the decision of the AIT was a factor but it was only one factor. It did not deal with ILR. Applications for ILR are dealt with under part 9 off the Immigration Rules whereas deportation is dealt with under part 13. The decision of the AIT could not constrain the discretion of the respondent in reviewing the refusal of ILR as part of the CRP. In any event it was taken into account as part of that process and it was dealt with at length in the decision letter.

[17] It was Mr Duthie submitted clear that it is permissible to take into account convictions that are spent under the Rehabilitation of Offenders Act so long as it is not the sole ground of refusal; see the Immigration Directorates' Instructions, chapter 22 at para 4.2 and IR 322(5). Here the fact of the conviction was not the sole ground of refusal. The grounds included the failure to disclose a conviction. So far as the decision of the AIT is concerned the respondent was not bound to follow its decision. The respondent had come to a different view on a slightly different question. The duration of the petitioners stay and the spent conviction had both been taken into account in the decision letter of May 2013.

[18] Turning to the alleged failure to give reasons the petitioner relied on the case of HLW. However this was an Outer House case. The test was to be found in Clyde and Edwards on judicial review at para 18.56 which made it clear that there was no duty to give reasons; it was a matter of fairness and relied to some extent on the character of the decision being taken and the circumstances. Here the decision was not a statutory appeal but a review under the CRP. If reasons require to be given then all that is required are those that are fully adequate to leave the petitioner advised as to the basis of the decision. Mr Duthie referred me to R (Baser) v Secretary of State for the Home Department [2012] EWHC 3629 and to BM v Secretary of State for the Home Department 2011 SC 726. In M v Secretary of State for the Home Department [2003] 1 WLR 1980 Laws LJ had held that where a decision maker was required to take account of another decision maker's decision, and differed from it, he was obliged to explain "however shortly" why he differs from it (para 18). Here the respondent differed from the decision of the AIT; she was accordingly obliged to explain shortly why she differed from it. She had done so.

[19] In the further written and oral submissions at the by order hearing Ms Irvine submitted that the respondent was not entitled to take the 2006 conviction into account when determining whether to grant ILR as at the material time it was 'spent' under the 1974 Act. It is not necessary to record the submissions for both sides as there was a certain amount of agreement. Parties are agreed that the 1974 Act is applicable and that in terms of Table A of section 5(4) of that Act the five year rehabilitation applies. Accordingly by the time of the 2013 decision letter the conviction was spent.

[20] The disagreement centres on the effect of the 2012 Act. Section 140 of that Act inserts a new section 56A into the United Kingdom Borders Act 2007 (the 2007 Act). That section dis-applies sections 4(1), (2) and (3) of the 1974 Act for certain categories of what are termed "relevant immigration decisions". That phrase is defined in section 56A(2) of the 2007 Act as, "any decision of the Secretary of State... under or by virtue of the Immigration Acts or rules made under section 3 of the Immigration Act 1971 (immigration rules), in relation to the entitlement of a person to enter or remain in the United Kingdom." Ms Irvine concedes that if the provisions of section 140 apply then the respondent was entitled to have regard to the 2006 conviction notwithstanding that, for other purposes, the conviction is spent.

[21] There are, however, transitional arrangements contained in section 141 of the 2012 Act. Section 141(9) provides that section 140, which inserts section 56A into the 2007 Act, does not affect "(b) any applications for immigration or nationality decisions made, but not finally determined, before the commencement date". Miss Irvine made two submissions in support of the proposition that the transitional arrangements applied. First she said that the letter by the petitioner's agents, McGill & Co, to the United Kingdom Border Agency and dated 18 August 2011 constituted an application for the purposes of section 141(9) of the 2012 Act. The letter notes that the petitioner had, at that stage, been in the UK for approaching 11 years. It goes on to request a "final decision" in terms of the Case Resolution Programme". Ms Irvine submitted that up until that point the petitioner's immigration status was confused. Against that background it could be said that the original application had not been finally determined. Alternatively against the uncertainty surrounding his immigration status the letter of 18 August 2011 could be seen as an application for ILR. She pointed out that the respondent's letter of 26 April 2012 declared that the Case Resolution Directorate was established to deal with unresolved asylum applications. Whether the application is taken as being made on 9 May 2006 (the date of the ILR application) or on 18 August 2011 since both pre-date the commencement of the 2012 Act the transitional arrangements applied.

[22] Secondly Ms Irvine submitted that what was meant by 'immigration decision' in section 141(9) of the 2012 Act could be determined by reference to 'relevant immigration decision' to be found in section 56A of the 2007 Act, as inserted by section 140 of the 2012 Act. In her submission there had to be a consistent approach otherwise determinations under the CRP would not have the protection of the transitional arrangements. Relevant immigration decision under section 56A of the 2007 Act is broader in scope than the category of immigration decisions under section 82 of the Immigration and Asylum Act 2002 and against which there is a right of appeal. It could only be in relation to a relevant immigration decision in terms of section 56A that transitional arrangements could apply. The decision in response to what she called the CRP application was made pursuant to Rule 353 B of the Immigration Rules and accordingly was an immigration decision. Accordingly the transitional arrangements applied.

[23] Mr Duthie responded that the reliance on the transitional arrangements in section 141(9) of the 2012 Act was unsound as there was no application. The application for ILR had been refused on 5 September 2008. That was a final determination and there had been no appeal. There was no uncertainty. Even if there was that could not confer the status of application to the letter of 18 August 2011. If there was no application then section 141(9) could not apply. There was no procedure for a CRP review. While an applicant could ask for such a review there was no statutory basis for it. He referred me to R (Baser) v Secretary of State for the Home Department where Eady J (at paragraphs 8 and 15) had set out the nature of such reviews. There was a distinction between 'relevant immigration decision' in section 56A of the 2007 Act and 'immigration decision' in section 141(9) of the 2012 Act. That appeared to be a deliberate decision; if Parliament had intended that they should be read as meaning the same thing the language would be the same. The decision by the respondent under the CRP was not an immigration decision; (Baser) at paragraph 15. For all these reasons the transitional arrangements in section 141(9) of the 2012 Act did not apply. Accordingly the Secretary of State was entitled to have regard to the fact of the 2006 conviction.

Discussion
[24] The first issue is whether or not the respondent was entitled to take into account the 2006 conviction. In my opinion there was no extant application when the Secretary of State made her decision in 2013. What she was doing was reviewing a decision previously made. The letter sent on the petitioner's behalf by McGill & Co and dated 18 August 2011 does not constitute an application. The CRP is an administrative mechanism used by the Secretary of State to ensure that decisions are kept up to date and relevant to changing circumstances. It does not proceed on an application though a review of a decision may be requested by a party. Nor does it result in an immigration decision. In R (Baser) v Secretary of State for the Home Department [2012] EWHC 3620 (Admin) Eady J held that the mere fact that an applicant was being dealt with under the Legacy Programme (which dealt with the processing of old asylum claims) did not entail an immigration decision. That would only arise if a fresh application had to be considered (paragraphs 14 and 15).

[25] Accordingly I am satisfied that the transitional arrangements in section 140 of the 2012 Act do not apply. If the 2006 conviction was spent under the 1974 Act then the terms of section 56A of the 2007 Act enables the respondent to have regard to that conviction. It follows too that the respondent did not err in considering whether the spent nature of the conviction constituted an exceptional circumstance under Rule 353B of the Immigration Rules.

[26] Ms Irvine contended that the decision of the Secretary of State ought to have been the same as the decision of the IAT as the reasons that were given for the decision to refuse ILR were the same as those given for deportation. Once the AIT had upheld the appeal the Secretary of State ought to have accepted that the same reasoning applied to the decision to refuse ILR. Accordingly the decision of 2013 was flawed. In any event she submitted that the Secretary of State ought to have given greater weight to the decision of the AIT.

[27] Despite the fact that the Secretary of State conflated the two decisions in the original decision letter of 2008 I agree with Mr Duthie that they are distinct decisions. The Secretary of State was not bound by the decision of the AIT in relation to the decision to refuse ILR. Accordingly I cannot agree that in the CRP process the respondent should simply have followed that decision. So far as the question of weight to be given to the AIT decision is concerned providing the Secretary of State has acknowledged the decision as a relevant factor then the weight is primarily a matter for her. In this case there is no question that she has taken that decision into account and given reasons for taking a different view.

[28] Mr Duthie contended that the respondent's decision was not one which required reasons. Whether or not that submission is correct in law it seems to me that reasons have been given at paragraph 14 of the letter. The reasons explain that despite the fact that the disposal was at the lowest end of the scale it remained the case that he had been convicted of a sexual offence against children.. Key to the decision is that "this is not conduct which is desirable in a person applying for Indefinite Leave to Remain in the United Kingdom". She was entitled to reach that view. The decision letter goes on to say that when this is combined with the failure to disclose the conviction on the application and the failure to give a reason as to why he could not return to Iraq then the Secretary of State considered that she should not exercise her discretion by granting the petitioner ILR.

[29] While it appears that the Secretary of State has not relied principally on the failure to disclose the conviction it is the case that such failure could, on its own, be sufficient to justify refusal of ILR (see IR 322(2)). Accordingly the failure to disclose the conviction cannot be regarded as a mere make-weight in the decision but a substantial feature of the overall decision making process.

[30] Accordingly I shall sustain the plea in law for the respondent and refuse the petition. I shall reserve the question of expenses.