Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 77

P1351/12

Lady Paton

Lady Clark of Calton

Lord Philip

OPINION OF THE COURT

delivered by LADY PATON

in the reclaiming motion

by

L W F (AP)

Petitioner and Reclaimer;

against

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

in

Judicial Review of a decision in terms of section 94(2) of the Nationality, Immigration and Asylum Act 2002, issued on 27 December 2012

Petitioner and reclaimer:  Caskie;  Drummond Miller LLP

Respondent:  Webster;  Office of the Solicitor for the Advocate General

24 September 2014

Certification that article 8 human rights claim “clearly unfounded”:  section 94(2) of the Nationality, Immigration and Asylum Act 2002

[1]        In a decision letter dated 27 December 2012, the respondent referred to a letter dated 20 December 2012 from the petitioner’s solicitors.  In that letter, the solicitors contended that to require the petitioner to leave the United Kingdom, and thus be forced to apply for entry clearance from abroad, would breach her family and private life rights under article 8 of the European Convention on Human Rights (ECHR), and also the article 8 rights of her partner, a UK citizen named LJA.  In particular they wrote:

“We accept that our client does not qualify for leave to remain on the basis of family and private life under the new Immigration Rules, however it is submitted that the proportionality of our client’s removal from the United Kingdom still falls to be assessed under Article 8 ECHR.  It would be unreasonable to fail to consider the individual circumstances of a person’s private and family life on the basis that they have not been in the United Kingdom for a period of twenty years and therefore cannot succeed under the Immigration Rules.

Our client has resided in the United Kingdom since 2006.  Our client is currently in a relationship with a British National.  His name is [LJA], and his date of birth is the 5^th March 1950.  Our client advises that they have been in a relationship for over two years.  Our client is therefore seeking to regularise her status in the United Kingdom to allow her to reside with her partner.”

[2]        Having noted the petitioner’s personal circumstances and referred to relevant case-law, the respondent replied:

“29.  In conclusion, we are satisfied that your client’s removal would not place the United Kingdom in breach of Convention obligations and your client’s human rights claim is hereby refused.  In the light of the above, we are satisfied that your client’s human rights claim is one to which section 94(2) of the Nationality, Immigration and Asylum Act 2002 apply.  After consideration of all the evidence available, we have decided that your client’s claim is clearly unfounded, that is, ‘the allegation [of a breach of her human rights] is so clearly without substance that the appeal would be bound to fail” (Thangarasa and Yogathas [2002] UKHL 36).  Therefore, a certificate is issued under section 94(2) of the NIA Act 2002 certifying that your client’s claim is clearly unfounded.  As the claim has been certified as clearly unfounded, your client may not appeal while in the United Kingdom.”  

That paragraph made it clear that the petitioner was required to leave the United Kingdom and to make any further application for authorisation to remain in the United Kingdom from abroad.

Petition for judicial review

[3]        The petitioner sought judicial review of the certification under section 94(2).  She lodged a petition in the Court of Session in late December 2012.  After hearing submissions at a first hearing, Lord Stewart refused the petition.  The main part of his opinion dated 4 July 2013 dealt with a contentious issue concerning the proper approach to the new Immigration Rules HC 194, introduced on 9 July 2012.  That issue was subsequently authoritatively resolved by the Supreme Court in Patel v SSHD [2013] 3 WLR 1517.  Accordingly the challenge in this reclaiming motion was restricted to the second ground of appeal in the following terms:

“2.  The Lord Ordinary erred in holding it inevitable that an Immigration Judge would reject the petitioner’s claim to have family life et separatim failed to provide adequate reasons for that decision.”

[4]        The following passages of the Lord Ordinary’s opinion are relevant:

"[4]…I think the petitioner's application can only have one outcome whether or not the new rules are fit for their intended purpose.  The conclusion I have come to is that the United Kingdom Border Agency [UKBA] decision of 27 December 2012, which the petitioner challenges, is sound;  that the petitioner's application to have that decision set aside must be refused;  and that the petitioner must leave the United Kingdom …..

Immigration history and decision under challenge

[5]          The petitioner states that she is a citizen of the Hong Kong Special Administrative Region of the People's Republic of China.  She claims to have entered the United Kingdom in March or April 2006 on a six month visitor visa.  She over-stayed.  Five years later, on 21 January 2011 she was encountered by the authorities working in the kitchen of a restaurant in Kirkintilloch.  She was served with a notice of liability to removal, form IS151A and detained.  On 17 February 2011 the petitioner was released on immigration bail with reporting conditions.  The petitioner did not leave the United Kingdom voluntarily.  On 14 December 2012 the petitioner was again detained to facilitate her removal.  She was served with removal directions, form IS151D, for removal to Hong Kong on 28 December 2012.  Representations were submitted by lawyers on the petitioner's behalf on 20 December 2012.  It was claimed that the petitioner was 'in a relationship with' a British national male apparently of Chinese ethnicity, LJA, and that her removal would violate her right to respect for her private and family life in terms of ECHR article 8.  The representations were backed up by a letter from LJA with a photocopy of his passport biodata page and four other letters of support from members of the British Chinese community vouched by copy identity documentation.

……

[44]         My impression is that, in situations like the present one where the new rules bear to apply, article 8 ECHR issues will come to be resolved satisfactorily in terms of the rules in all but a small number of cases.  Resolution within the rules includes granting leave in terms of the 'insurmountable obstacles' exception.  In marginal situations it will be for claimants to make the case for leave outside the rules.  The present case is not a marginal one in my opinion.  Had I been required to do so, I should have held that the decision maker has lawfully disposed of the human rights issue by reference to the rules alone.  I take the view that the decision maker has separately and in addition made a 'traditional' article 8 ECHR proportionality assessment which is not in any way flawed.  The only rational view that could have been taken of this claim on the facts was that it is 'clearly unfounded'.  I shall therefore repel the petitioner's plea-in-law (as substituted by amendment) directed against the lawfulness of the certification decision, repel the respondent's first and second pleas-in-law as having been superseded, sustain the respondent's third plea-in-law to the effect that the respondent has not acted irrationally or otherwise erred in law and refuse the petition reserving meantime all questions of expenses".

The Lord Ordinary also noted in paragraph [12] of his opinion that he was referred to paragraph 8 of the decision letter (see paragraph [10] below), and its terms were quoted to him.

Section 94(2)

[5]        Section 94 of the Nationality, Immigration and Asylum Act 2002 provides inter alia:

“Appeal from within United Kingdom:  unfounded human rights or asylum claim

(1)        This section applies to an appeal under section 82(1) where the appellant has made an asylum or a human rights claim (or both).

(2)        A person may not bring an appeal to which this section applies in reliance on section 92(4)(a) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded.”

Article 8 of the European Convention on Human Rights

[6]        Article 8 of the ECHR provides:

“                                                      Article 8

Right to respect for private and family life

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.”

The petitioner’s immigration history and present status

[7]        The petitioner was born on 27 April 1973.  She is a citizen of the Hong Kong Special Administrative Region of China.  She came to the UK in March 2006.  She had a 6-month visitor visa.  However she remained beyond 6 months, becoming an overstayer.  She worked in a restaurant in Kirkintilloch.  It was there, on 21 January 2011, that she encountered the immigration authorities.  After various procedures the petitioner was detained on 14 December 2012 and served with directions for removal to Hong Kong.  On 20 December 2012, representations were made on her behalf that her removal would result in a breach of her own and her partner LJA’s article 8 rights.  The response was the decision letter dated 27 December 2012, referred to in paragraph [1] above.

[8]        The petitioner is unmarried.  In January 2011 she did not claim to be in a relationship with a UK citizen.  Indeed she advised the United Kingdom Border Agency (UKBA) that she was prepared to leave the UK.  The first mention of a 2-year relationship with LJA came in her solicitors’ representations on 20 December 2012, when she was faced with actual removal from the UK.  Letters from LJA and other acquaintances were provided to confirm the relationship. 

[9]        The petitioner and LJA do not live together.  The petitioner has no children or other dependents in the UK.  She has no known health issues of any significance.

[10]      The respondent referred to these circumstances in the decision letter dated 27 December 2012.   Paragraph 8 of the decision letter recorded the respondent’s primary position, namely that the petitioner and LJA had no family life together.  In particular they did not cohabit;  in January 2011 there had been no mention of LJA as the petitioner’s partner;  further the petitioner had told officers that she wanted to return home.  Paragraph 12 set out the respondent’s secondary position, namely that even if it was accepted that there was family or private life, the petitioner did not qualify under the new Immigration Rules, and her return to Hong Kong would not be a disproportionate interference with article 8 rights.  Contact with friends made in the UK could be maintained by modern communication methods.  Paragraph 17 accepted that the petitioner had no criminal convictions, but pointed out that, as an overstayer, she had been working and living in the UK illegally.  Paragraphs 18 to 27 noted the petitioner’s personal history with reference to legal authority, and concluded that even if there was family life, and even if removal interfered with the petitioner’s article 8 rights, there were no exceptional circumstances indicating that removal was inappropriate.  On the contrary, removal was a justifiable and proportionate course of action in pursuit of the legitimate aim of effective immigration control.  Paragraph 28 emphasised that any family life had been established at a time when the petitioner knew that her immigration status was precarious.  Paragraph 29 set out the conclusion, quoted in paragraph [2] above.

Submissions for the petitioner

[11]      Counsel submitted that removal from the UK could be disproportionate even where no children were involved (Chikwamba v SSHD [2009] 1 All ER 363 paragraph 44;  MA (Pakistan) v SSHD [2009] EWCA Civ 953 paragraph 7).  The circumstances in the petitioner’s case were more favourable than those in Chikwamba, in that the petitioner had initially entered the UK as of right, had not lied to the authorities, had not made a false claim for asylum, and had never been refused leave to enter.  It could not properly be said that there were “no prospects of success” in the petitioner’s case, or that her claim was “bound to fail”.  Any separation between the petitioner and LJA was likely to be indeterminate and indefinite, as LJA, although free to travel to China, had business interests in the UK making his presence there essential (counsel could not be more specific).  Such a separation would be disproportionate.  It was not necessary, in a domestic case such as the present, for the petitioner to establish that removal would result in “a very grave state of affairs, amounting to a flagrant or fundamental breach of [article 8]” (which in effect constituted a complete denial of her rights) before it could be held that the admitted interference with the petitioner’s private life would have consequences of sufficient gravity to engage article 8 (KBO v SSHD [2009] CSIH 30, Lord Reed at paragraphs [14] to [17]).  The petitioner was not someone whose compliance with immigration law was questionable (contrast with MA (Pakistan) v SSHD [2009] EWCA Civ 953 paragraph 3).  Thus it could not be said that the application was “bound to fail” following upon an assessment of the five questions in R (Razgar) v SSHD [2004] 2 AC 368 at paragraph 17.  An immigration judge might well take a different view from that taken by the respondent.  While it was accepted that the respondent’s decision fell within the range of reasonable responses, it was not the only possible response.  An immigration judge, giving such weight to the facts as he or she thought appropriate, might allow the appeal.

Submissions for the respondent

[12]      Counsel submitted that (i) the Lord Ordinary was entitled to conclude that “the only rational view that could have been taken of this claim on the facts was that it is ‘clearly unfounded’”(paragraph [44] of his opinion).  (ii) The Lord Ordinary had given adequate reasons.  The main focus of the debate before the Lord Ordinary had been a detailed argument about the new Immigration Rules, with only a short time devoted to the question whether the case was clearly unfounded.  That allocation of time was reflected in the Lord Ordinary’s judgment.  (iii) Even if the appeal court considered that the reasons given were inadequate, that was not a material error, as the appeal court could assess the facts.  The only view which could rationally be taken was that the claim was “clearly unfounded”.  Accordingly the appeal court need not interfere.

[13]      The significant aspect of the case was that it involved family life created at a time when the appellant knew that her immigration status in the UK was precarious.  She knew that her visa had expired;  that she had no right to remain;  and that she had no reason to think that she could remain beyond the time allowed by her visa.  Where family life was entered into at a time when the applicant’s immigration status was precarious, only in exceptional circumstances would the balance of the various considerations favour the applicant (MS v SSHD [2013] CSIH 52).  That approach had been approved by the Strasbourg court.  The applicant would have to show something unusual and unjustifiably harsh arising from a return order.  In the present case, that had not been demonstrated.  The petitioner had no children, no health issues, and no dependents to support.  She had been unable to point to unacceptable events occurring on her return to China.  The only rational conclusion was that her application was bound to fail.  Only if it could be said that such a conclusion was, on the facts, “irrational” was the petitioner entitled to succeed.  There was no suggestion that the respondent’s decision did not comply with the rules:  accordingly the petitioner had to demonstrate a non-standard fact, of a compelling nature, making removal from the UK unjustifiably harsh.  She had not done so.

[14]      In conclusion, the effect of the decisions MS v SSHD and R (Nagre) v SSHD was threefold:  (i) only in the most exceptional circumstances would the removal of a non-national family member constitute a violation of article 8;  (ii) the absence of insurmountable obstacles to relocation was likely to indicate that removal would be proportionate;  (iii) removal would have to be shown to be disproportionate in the sense that other non-standard particular features of a compelling nature demonstrated that removal would be unjustifiably harsh.  The respondent and the Lord Ordinary were entitled to reach the views they did.  The reclaiming motion should be refused.

Discussion

[15]      The petitioner is a young woman with no known dependents.  She is unmarried with no children.  She is able to travel and to take up employment.  She has no significant health problems.  There is nothing to suggest that she will face unacceptable consequences if she returns to China.  Her immigration history, although not as bad as that described in Chikwamba v SSHD [2009] EWCA Civ 953, is not good.  In particular she overstayed after the expiry of her 6-month visa, and remained in the UK without authorisation for about 5 years.  It was only in 2011, when immigration officials visited the restaurant in which she was working, that her overstaying came to light.

[16]      The petitioner relies upon a 2-year relationship with LJA, a UK citizen, and upon article 8 of the ECHR.  She argues that it would be a disproportionate interference with her family life to remove her from the UK such that she had to make any further application for authorisation to remain in the UK from abroad.  However her relationship with LJA does not involve the parties living together, or being dependent upon each other in relation to home, housing, finance, relatives, or ability to cope with day-to-day matters.  Moreover LJA is an adult UK citizen who is able to travel abroad and to communicate with people by telephone, computer and other modern means.  Further the relationship was entered into at a time when the petitioner’s immigration status was precarious, as she knew that her visa had expired and that she had no right to remain in the UK.  As was explained in MS v SSHD [2013] CSIH 52 at paragraph [29]:

“ … [Sales J in R (Nagre) v SSHD [2013] EWHC 720 (Admin)] considers a number of cases, including the important Strasbourg decision in Rodrigues da Silva and Hoogkammer v Netherlands (2007) 44 EHRR 34, and indicates that the approach in the Strasbourg case law is that, where family life is established when the immigration status of the claimant is precarious, removal will be disproportionate only in exceptional cases.  On that basis, he considered that the gap between the test for leave to remain under EX.1 and the result obtained by direct consideration of article 8 in the class of cases involving precarious family life was likely to be small.  We are in agreement with that view …”

See too paragraphs 38 to 42 of R (Nagre) v SSHD [2013] EWHC 720 (Admin).  No exceptional facts or circumstances have been demonstrated in the present case.

[17]      Even if private and/or family life were assumed to be established in the present case and thus article 8 of the ECHR engaged, we do not accept that an immigration judge, assessing the case as favourably as possible for the petitioner in the light of inter alia R (Razgar) v SSHD [2004] 2 AC 368, paragraph 17, Patel v SSHD [2013] 3 WLR 1517, R (Nagre) v SSHD [2013] EWHC 720 (Admin) and Rodrigues da Silva and Hoogkammer v Netherlands (2007) 44 EHRR 34, and forming a judgment as to whether a fair balance had been struck between a public or social need and the private interests of the petitioner and her partner, might conclude that removal of the petitioner from the UK was disproportionate in the circumstances.

[18]      It follows that, on the basis of the facts in this case, the Lord Ordinary was entitled to conclude as he did in paragraph [44] of his opinion that “the only rational view that could have been taken of this claim on the facts was that it is ‘clearly unfounded’ …”, and that the certification under section 94(2) should not be reduced.  In other words, the claim has no prospects of success on appeal to an immigration judge, properly directed as to the law and properly instructed as to the facts, even assuming the most favourable interpretation for the petitioner.  The appeal is, in our view, “bound to fail” (cf Lord Hope at paragraph 34 of R (Yogathas and Thangarasa) v SSHD [2003] 1 AC 920).  Thus the respondent and the Lord Ordinary were entitled to reach the conclusions they did.

[19]      Against the background of the facts in this case (set out by the Lord Ordinary in paragraphs [5], [6] and [12] of his opinion) we do not accept that the reasons given by the Lord Ordinary were inadequate to support his conclusion.  In this particular case, a stark narration of the facts, followed by the Lord Ordinary’s conclusion on those facts, is all that is required.

Decision

[20]      For the reasons given above, we shall refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary dated 4 July 2013.  We continue the question of expenses.