Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 85
P911/13	OPINION OF LORD BOYD OF DUNCANSBY in Petition of T N (AP) Petitioner; For Judicial Review of a decision by the Secretary of State for the Home Department made on 25 November 2013 to certify in terms of section 96(2) of the Nationality Immigration and Asylum Act 2002 an application made by the petitioner for the revocation of a deportation order. ________________

Petitioner: K McGuire; Drummond Miller LLP

Respondent: B J Gill; Office of Solicitor to Advocate General

14 May 2014

[1] The petitioner is a national of Zimbabwe. He was born on 12 January 1989. He first arrived in the UK on 11 February 2003 to join his father. He now has an extensive immigration history and a large number of convictions. These are detailed in the Secretary of State's letter of 25 November 2013. I briefly summarise these below.

[2] The letter of 25 November 2013 was a response to a fresh claim under paragraph 353 of the Immigration Rules made on behalf of the petitioner by the present agents dated 6 September 2013 and a request to cancel removal directions following a decision to deport him.

[3] The Secretary of State rejected the fresh claim reaffirming their deportation order. She also issued a certificate under section 96(2) of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act"). Certification of an application under this section has the effect of preventing a further appeal against her decision. The petitioner seeks reduction of that certificate. He also seeks an order that the Secretary of State inform him that he has a right of appeal against the Secretary of State's decision to refuse his applications (a) for leave to remain in the UK on article 8 grounds and (b) for revocation of a deportation order. He does not challenge the deportation order.

Immigration history
[4] The petitioner arrived in the UK on 11 February 2003 and applied for indefinite leave to remain. He was granted leave, extended to 17 March 2011. On 18 February 2008 he applied for indefinite leave to remain as a dependent of his father. By this time he had acquired three criminal convictions. His application was refused. His leave to remain was curtailed so as to expire on 30 November 2008. A deportation order was made on 2 December 2009. By this time he had acquired another five convictions. The petitioner appealed to the First-tier Tribunal. On 6 May 2010 his appeal was allowed on article 8 grounds but refused on asylum grounds. The petitioner was unsuccessful in seeking to appeal the refusal on asylum grounds. Discretionary leave to remain was granted on 9 December 2010. By this time the petitioner had another two convictions. The petitioner was convicted again on 14 June 2011 and on 13 December 2011. The Secretary of State served a liability to deportation letter on the petitioner on 11 January 2010. She also served him with a letter under section 120 of the 2002 Act. Such a letter is commonly known as a One Stop letter. In due course the deportation order was made on 6 March 2012. An appeal was lodged. It was refused by the FTT. He was given permission to appeal to the Upper Tribunal. That appeal was refused. On 23 October 2012 this court refused him permission to appeal to the Court of Session at which point his rights of appeal were exhausted.

[5] The petition contains these averments regarding the petitioner's child.

"6. That the petitioner has a daughter ([CW]) who was born on 20/03/2011. The petitioner's daughter is currently living with her maternal grandparents at [address given]. The maternal grandparents have the main responsibility for looking after [CW]. It is believed that [CW]'s mother has very little contact with her daughter. [CW]'s paternal grandparents (the petitioner's parents) assist with looking after her and she often spends time (during the day and overnight) with them."

These averments were supplemented in oral submissions, in particular by reference to a statement made by the petitioner's mother on 6 September 2013 and which had accompanied the representations. In it she says that she is worried that if the petitioner is removed he will have no chance of building up a relationship with his daughter. Her mother had abandoned her when she realised that she was mixed race. However, she is now trying to build a relationship with her daughter but mostly she is cared for by her maternal grandparents. She apparently lives with her maternal grandparents but the petitioner's mother hopes that if the petitioner was released (from detention) he would be able to be involved in her care. The maternal grandparents would be willing to let the petitioner's parents take care of CW permanently if the petitioner is released. In September 2013 he had apparently seen his daughter on five occasions.

[6] The answers to the petition state that it is believed to be true that the petitioner has a daughter but goes on to give the explanation (i) that the petitioner is not named on CW's birth certificate; (ii) that the petitioner informed the respondent that he was trying to have paternity tests to establish CW's paternity; and (iii) he has not advised the respondents of the result of any such tests. Mr Gill made it clear that while he accepted that the petitioner was the father, the averments of fact in the petition were not accepted, far less the other matters raised in oral submissions and in the note of argument.

[7] The petitioner has been convicted on approximately 12 occasions of around 18 different offences between 2007 and 2011. The offences include assault, theft by shoplifting, acting in a racially aggravated manner with intent to cause distress and alarm, possession of a controlled drug with intent to supply, attempting to pervert the course of justice and attempted fraud. While they are not the most serious of convictions it is notable the number that have resulted in custodial disposals. The longest sentence is one of 8 months 29 days but he has been sentenced to terms of detention in a Young Offender's Institution or imprisonment on 8 or 9 occasions for terms ranging from 2 months to 6 months (twice).

[8] The Secretary of State made her decision to deport the petitioner having concluded that he had an established pattern of offending whilst in the UK and has demonstrated a disregard for the laws of the United Kingdom. The decision was made under paragraph 398(c) of the Immigration Rules.

[9] It is clear from the decisions of both the FTT and the UT that the petitioner has mental health issues. There is a reference to him being schizophrenic but I am not sure if he has been given a formal diagnosis. It appears to have been accepted, however, that he does suffer from mental illness and the provision of mental health services in Zimbabwe has been at issue. It is also clear that his condition and offending have greatly distressed his parents who are fearful for their son should he be returned to Zimbabwe. Both the FTT and the UT clearly had some sympathy with the petitioner. The UT concluded:

"31) The case is a very sad one, particularly for the appellants' parents, as all involved have recognised. However, it is only too predictable that if the appellant were to succeed, it would not be long before the SSHD has to look yet again at whether he ought to be deported, based on further and even more serious offending. That is not conjectural or pessimistic, but justified by the history so far, and the opinion of the clinical psychologist.

32) There is nothing to suggest that there is any meaningful family life between the appellant and his child, or that such family life is likely to develop, or that his departure from the UK would be against her interests."

The law
[10] Section 96(2) of the 2002 Act is in the following terms:

"An appeal under section 82(1) against an immigration decision ('the new decision') in respect of a person may not be brought if the Secretary of State or an immigration officer certifies3/4

(a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,

(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and

(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice."

Section 120 is as follows:

"120 Requirement to state additional grounds for application

(1) This section applies to a person if3/4

(a) he has made an application to enter or remain in the United Kingdom, or

(b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.

(2) The Secretary of State or an immigration officer may by notice in writing require the person to state3/4

(a) his reasons for wishing to enter or remain in the United Kingdom,

(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and

(c) any grounds on which he should not be removed from or required to leave the United Kingdom.

(3) A statement under subsection (2) need not repeat reasons or grounds set out in3/4

(a) the application mentioned in subsection (1)(a), or

(b) an application to which the immigration decision mentioned in subsection (1)(b) relates."

In R(J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin) Stadlen J set out a four stage process (paragraph 106):

"Under Section 96 (1) and (2) before the Secretary of State can lawfully decide to certify, she has to go though a four stage process. First she must be satisfied that the person was notified of a right of appeal under Section 82 against another immigration decision ( Section 96(1) ) or that the person received a notice under Section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision ( Section 96(2) ). Second she must conclude that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision (Section 96(1)(b)) or that the new decision relates to an application or claim which relies on a matter that should have been but has not been raised in a statement made in response to that notice ( Section 96(2)(b)) ). Third she must form the opinion that there is no satisfactory reason for that matter not having been raised in an appeal against the old decision ( Section 96 (1) (c) ) or that there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice ( Section 96 (2)(c) ). Fourth she must address her mind to whether, having regard to all relevant factors, she should exercise her discretion to certify and conclude that it is appropriate to exercise the discretion in favour of certification"

Counsel were agreed that this was the appropriate process to follow. Counsel were also agreed that the test to be applied was Wednesbury unreasonableness. Mr Maguire, however, for the petitioner added the caveat that in assessing the Secretary of State's decision it had to be subjected to anxious scrutiny.

Submissions for petitioner
[11] Mr Maguire accepted that a notice had been served on the petitioner under section 120 of the 2002 Act. That was on 11 January 2012. At the time the petitioner was a prisoner in Barlinnie. A statement of additional grounds could be made in response to a section 120 notice at any time up to and including the hearing of the appeal. At a minimum it had to set out, with some level of particularity, the ground or basis relied upon as a basis for remaining in the United Kingdom and upon which he has not previously relied; see the decision of the UT in Jaff (s 120 notice; statement of "additional grounds") [2012] UKUT 396 (IAC) and in particular paragraph 24.

[12] Following the stages set out in by Stadlen J in R(J) Mr Maguire addressed the second stage. He took me to the representations made on 6 September 2013 by the present agents. These raised two issues which were relevant. The first was the best interests of his daughter CW. The second was the impact of the petitioner's mental health on any questioning by CIO officers on his return to Harare Airport. This, it was said, posed a risk to his health and a possible breach of article 3 of ECHR. Both of these matters had been raised in the FTT and UT.

[13] If the representations were found not to have been raised in response to the section 120 notice then Mr Maguire submitted that the Secretary of State had acted wholly unreasonable in not accepting that there was a satisfactory reason for this. Accordingly, it failed the stage 3 process. The Secretary of State had not given the matter anxious scrutiny. It was clear that the petitioner was not legally represented at the time. The petitioner's mother in her statement had said that she had been aware of CW's existence "for a year now". The statement was given on September 2013. Accordingly it would be apparent that the petitioner had only learned about CW in about September 2012. The petitioner had been told about CW by his mother. This statement had been before the Secretary of State. It was accordingly wholly unreasonable to expect the petitioner to have raised issues concerning his daughter in response to the section 120 notice. (I note in passing that this submission is at odds with the averment in the petition at statement 11 that, at the time of the One Stop notice in January 2012, the petitioner had only recently become aware that he had a baby daughter). The Secretary of State was also aware that the petitioner had previously been "sectioned" under the Mental Health Act and that he had seen a psychiatrist and prescribed medication. In practice the petitioner may not have appreciated that he had been served with a One Stop notice or what it meant. The present agents, who were instructed after its service, were not aware of it.

[14] Turning to the fourth stage Mr Maguire submitted that the Secretary of State had failed to exercise her discretion and had asked herself the wrong question. The letter of 25 November 2013 states:

"Is it appropriate to exercise discretion in favour of deportation?

Mr N is a foreign national offender who faces deportation. He has previously been given ample opportunity to raise the issues submitted in the letter of 6 September 2013 but failed to do so before now. It is not accepted that there are satisfactory reasons for the Secretary of State to overturn the certification. it is considered appropriate to pursue your client's deportation to Zimbabwe."

Even if she had exercised a discretion, she had acted wholly unreasonably in certifying the application under section 96(2).

[15] Finally on substantial issues, Mr Maguire submitted that in deciding to certify the application under section 96(2) the Secretary of State failed to consider the best interests and welfare of the petitioner's daughter in terms of section 55 of the Borders, Citizenship and Immigration Act 2009 ("the 2009 Act"). While Mr Maguire accepted that she had applied her mind to the issue in considering deportation, there was a complete absence of any mention of the interests of the child CW when it came to certification.

[16] Mr Maguire submitted that not only should the certification be reduced but that the court should pronounce an order to the effect that the petitioner should be notified that he had a right of appeal. His concern was that the Secretary of State would simply go through the process again and recertify the application. The purpose of the order he sought was to create a legitimate expectation that the petitioner would indeed be accorded a right of appeal. Mr Maguire properly drew my attention to the observations of Stadlen J in R(J) at paragraphs 155 to 159 discussed by Temporary Judge Beckett in H v The Secretary of State for the Home Department 2012 SLT 1004 at 1017. Stadlen J had observed that Parliament had entrusted certification to the Secretary of State and the proper course was for her to consider the matter again.

Submissions for respondent
[17] For the respondent Mr Gill put squarely at the centre of his submissions the petitioner's lengthy criminal record. This was central to the Secretary of State's reasoning. The seriousness of the petitioner's criminal history should not be overlooked. He accepted that in determining the issue anxious scrutiny was required. He submitted that the ambit of the relevant considerations to be taken into account should be generously wide; R(J) at paragraph 139. This was not a legal principle but a state of mind. There was, however, a balance to be struck; R (on the application of YH) v The Secretary of State for the Home Department [2010] 4 All ER 448 per Carnwath LJ at paragraphs 22 to 24.

[18] Following the four stage process he submitted that there had been no response to the section 120 letter. In any event, just saying that there was an article 8 claim was not sufficient. It must be set out with a degree of particularity; Jaff at paragraph 24. The mental issues raised at the petitioner's appeal before the FTT and before the UT were not the same as those raised in the representations. Before the UT the issue in relation to CW was that the rest of the petitioner's family hoped that he would maintain contact with CW. He himself was not sure if he wanted to be part of her life. In contrast, the matters raised in the representation were to the effect that the petitioner had a private life with CW.

[19] Turning to the stage three process, Mr Gill accepted that a matter can be raised up to the point of appeal. Indeed, having regard to section 104(2)(a) of the 2002 Act it could be raised at any point before the appeal rights were exhausted. In this case it was when Lord Brodie had refused an application from the petitioner to appeal from the decision of the Upper Tribunal to the Court of Session on 21 March 2013. The respondent did not accept the facts narrated regarding the petitioner's awareness of the existence of his daughter. Even if that was accepted, given the timeline involved, it was open to the Secretary of State to conclude that there was no reason for the matter now relied on not having been raised before. So far as the mental health issues were concerned no good reason had been advanced for these not being raised before. Insofar as it was suggested that the Secretary of State could take from various parts of statements, reasons which could on one view satisfy her that there were reasons for these matters not having been raised before it could be right to expect the Secretary of State to trawl through desperate pieces of information for nuggets that might suggest reasons. The Secretary of State was entitled to know what reasons were being relied upon.

[20] Turning to the stage four process Mr Gill submitted that on a fair reading of the letter as a whole, the criticisms were not made out. They were criticisms of form and not of substance. The use of the word "deportation" in the question that the Secretary of State had posed herself was an infelicity of language. Moreover the criticism misconceived. The effect of certification was in fact to deprive the petitioner of a right of appeal against the refusal to revoke the deportation order or the refusal to grant him leave to remain in the UK. The certification therefore made deportation inevitable. There was no distinction between an exercise in favour of certification and one in favour of deportation. It was suggested that there was an absence of reasons to conclude that the Secretary of State had exercised discretion. The context however was the overwhelming long history of serious offending. The Secretary of State had concluded in terms of paragraph 398(c) that there was an established pattern of offending which showed a disregard for the laws of the UK. He accepted that the language used was in part unfortunate but there was nothing there to suggest that the Secretary of State had acted unreasonably in certifying the application. While he accepted that the question of deportation and certification were distinct they were in substance the same because the result is the same.

[21] Mr Gill accepted that section 55 of the 2009 Act imposed a duty on the Secretary of State to consider the best interests of the child when she made a decision to certify under section 96(2). He accepted that it had not been specifically mentioned in the section dealing with certification but it was dealt with extensively elsewhere in the letter. That he submitted was sufficient to show that the Secretary of State had exercised a duty under section 55.

[22] On the issue of disposal if the certification was reduced the effect was that unless the Secretary of State recertified the application the petitioner would have a right of appeal. It was not appropriate for the court to create a legitimate expectation that he would have a right of appeal.

Discussion
[23] The four stage process outlined by Stadlen J in R(J) has been accepted as the proper approach to certification under section 96(2); see Lord Jones in ANR (Pakistan) Petitioner [2013] CSOH 107 and H v SSHD. Parties were agreed that stage one was satisfied. Turning to stage two, there was no response to the section 120 letter. Insofar as there were issues raised in either the FTT or UT, I am satisfied that the Secretary of State did not act unreasonably in concluding that these were different to the matters raised in the representations of 6 September 2013. I am also satisfied that she did not act unreasonably in concluding that there was no good reason for these matters not having been raised in response to the section 120 letter.

[24] Before turning to the other issues it is, I think, appropriate to make some observations on the process of certification. First it is important to remember that there are two different and separate decisions being made - deportation and certification. Each decision has to be arrived at separately and while there are undoubtedly factors which are common to both decisions, one decision should not predetermine the other. I do not accept Mr Gill's submission that in substance they have the same result. A decision to deport will result in deportation subject to the exercise of the right of appeal under section 82 of the Act. A decision to certify the application removes that right of appeal.

[25] Secondly, while the strength of the case for deportation may be a factor in the Secretary of State's decision, it does not take away from the obligation to separately consider certification. It is, I think, quite possible to conceive of a case where a strong argument can be made for the Secretary of State exercising a discretion at stage four not to certify under section 96(2) even although she had already concluded that there were strong grounds for deportation.

[26] Thirdly, there are of course very good policy reasons for the use of section 120 letters and certifications. As Stadlen J points out in paragraph 138 in R(J), Parliament has sought to strike a balance between two important and legitimate public policy objectives. On the one hand is the principle of access to an independent tribunal and on the other there is a legitimate public interest in the efficient and cost-effective disposal of fresh claims. The courts must respect that policy objective. Parliament has effectively entrusted the balancing exercise to the Secretary of State. Equally, however, it is important that the decisions which the Secretary of State makes respects that balance. In particular, decisions to remove rights which Parliament otherwise has conferred upon individuals should be exercised with particular care.

[27] Fourthly, it should be possible to see from the decision letter the process that the Secretary of State has gone through and the factors that she has taken into account in respect of each decision.

[28] Turning to the submission that the Secretary of State has failed to have regard to a duty under section 55 of the 2009 Act it is certainly true that there is no mention of it in the section of the letter dealing with certification. There is, however, discussion of the interests of the child and an acceptance that deportation might not be in the best interests of the child on page 6 of the letter. The Secretary of State returns to the issue in an extensive discussion on pages 8 and 9. While I have just recognised that the decisions are separate, it is, I think, difficult to conclude that having regard to the letter as a whole she was not aware of her obligations under section 55 of the 2009 Act when reaching her decision on certification having just discussed it at length in the body of the letter. In any event, it is difficult to see that in context this has a material bearing on the issue of certification.

[29] That brings me to stage four and the discretion which the Secretary of State must exercise in determining whether to certify the application. Mr Gill accepts that the formulation of the question that the Secretary of State has asked herself uses language that is infelicitous. The courts, of course, should not look at every word in a decision letter as they are words of a statute. However, there are two matters that give me cause for concern about the way in which the Secretary of State has approached this issue. The first is that, on the face of it, she has indeed asked herself the wrong question. The issue is not whether it is appropriate to exercise a discretion in favour of deportation. It is whether she should exercise her discretion in favour of certification. In my opinion the word is important. It becomes particularly important when one has regard to the third sentence in the paragraph: "It is not accepted that there are satisfactory reasons for the Secretary of State to overturn (my emphasis) the certification". That again is not the issue; it is whether to use her discretion in favour of certification. On their own it might have been possible to make allowance for what might have been seen as the infelicitous use of language. Put together, however, they suggest that the Secretary of State has in effect made her mind up and not properly addressed herself at all to the relevant factors. The impression one has is that she has allowed the apparent strength of the case for deportation to overwhelm the issues that might be relevant to the issue of certification. That impression was reinforced by Mr Gill's submissions that the petitioner's criminal record was central to the issue of discretion and its seriousness should not be overlooked.

[30] The second matter of concern is that it is not clear from that paragraph what matters the Secretary of State has considered or not considered. The reasons given are sparse and little more than a recitation of what has been said before. Again one is left with the impression of the deportation decision overwhelming the decision on certification.

[31] Giving the matter anxious scrutiny, and having regard to the fact that certification under section 96 removes a right, I have come to the view that the Secretary of State did not apply her mind to the issue of whether or not she should exercise a discretion to certify and conclude that it was appropriate to exercise a discretion in favour of certification.

[32] The issue then is what should be done. I do not consider that it is appropriate for this court to grant an order that the petitioner be informed that he has a right of appeal. Parliament has entrusted the responsibility of certifying under section 96 to the Secretary of State and it is not for this court to substitute its own view. Accordingly the matter should return to the Secretary of State to consider the issue of certification afresh. I shall sustain the petitioner's first plea-in-law, repel the second and repel the respondent's first, third and fourth pleas-in-law and sustain the second. I shall reduce the decision to certify the application in accordance with section 96(2) of the Nationality Immigration and Asylum Act 2002. I shall reserve the question of expenses.