Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 149
​P100/14

OPINION OF LORD McEWAN

In the Petition

BC

Petitioner;

for Judicial Review of a decision of the

Secretary of State for the Home Department

Petitioner:  Stein;  Drummond Miller LLP (for Neil P Ruddy, Glasgow)

Respondent:  McIlvride;  Office of the Advocate General

3 October 2014

[1]        In this petition for judicial review the petitioner seeks to challenge the decision of the respondent dated 4 February 2014 refusing to accept that further submissions amount to a fresh claim for asylum.  (It is No 6/3 of process).

[2]        The immigration history is not in dispute and I can summarise it briefly.  The petitioner is a national of Zimbabwe.  Arriving in the UK in September 2009 she claimed asylum.  The Minister refused her claim and after three failed appeals on 16 January 2013 she became appeals rights exhausted.  She was to be removed.  A fresh claim was submitted and refused with no right of appeal in September 2013.  Fresh removal directions were served on 30 January 2014.  The next day she submitted a fresh claim on new grounds.  That was rejected as a fresh claim on 4 February, hence the present petition.  It puts in issue article 8 of the European Convention on Human Rights which (read shortly) provides inter alia

“8(1) Everyone has the right to respect for his private and family life…

    (2) There shall be no interference …with the exercise of this right…”

[3]        In the course of the debate a number of authorities were presented in bundles and the following were specifically referred to:- viz

Dangoll v Secretary of State 2011 SC 560

WM Congo [2006] EWCA Civ 1495

Nagre [2013] EWCH 720

K v UK (1986) 50 DR 199

Kussin v Secretary of State [2009] EWCH 358 Admin

MS v Secretary of State [2013] CSIH 52

RA [2011] CSOH 68

FO 2010 SLT 1087

[4]        The decision letter, No 6/3 of process can be summarised thus.  The history is correctly given and the asylum claim (not now a live issue) is dealt with in paragraph 4.

[5]        The remainder of the letter deals with what is claimed under article 8 (set out correctly in paragraph 5).  The writer of the letter (Mr Harris) then deals with the matter in such a way that shows it is being considered within the immigration rules (Exception section – again fully and correctly quoted).  The evidence submitted is then narrated and the conclusion is drawn that the petitioner is not in any meaningful relationship with her partner.  It is stressed (and I consider this to be important) that it is the first time that the issue of a relationship has been raised despite many previous applications.

[6]        Apart from the timing of the new representation it is undeniable that it was raised at a time when the position of the petitioners’ immigration status was precarious.

[7]        The letter goes on to state (paras 10 and 11) that, other than a preference, there is no evidence to show any insurmountable obstacle to family or private life continuing outside the UK.  It is open to the petitioner on a return to Zimbabwe to seek entry clearance return, and the test of proportionality is also clearly mentioned.

[8]        The writer then looks at the question of whether if the new material (and the old) are to be looked at as a fresh claim there is a realistic prospect of success.  Rule 353 is not quoted in full but is correctly paraphrased, and (para 14) the proper test in WM (DRC) is set out and followed. 

[9]        The letter concludes with a consideration and rejection of any exceptional circumstances as applying to the petitioner.

[10]      It is helpful to compare this letter with what was submitted to the Minister.  That is to be found in no 6/2 of process dated 31 January 2014.  The letter has nine pages and some thirteen further pages appended.  I have assumed the last page is a medical scan but it is difficult to interpret.  In two of the statements there is mention of a pregnancy.

[11]      Pages 1 to 3 of the letter deal with the asylum claim which is now not a live issue.  There then follows the article 8 claim.  The article is set out correctly as is paragraph 353 of the Rules (mentioned above).  The (correct) test set out in WM (DRC) is then narrated on page 4.  Page 5 sets out the facts including the pregnancy and the unfortunate miscarriage.  There is a request for her case to be looked on as exceptional and that she be granted discretionary leave to remain.  There is reference to a number of cases (not cited to me) and the case of Nagre which I refer to elsewhere in this opinion.

[12]      It is perfectly correct to observe that the various quotes taken from the many cases are not all to be found in the decision letter.  That can be no more than an observation;  it is not a criticism.

[13]      Mrs Stein appeared for the petitioner.  I now give a summary of the argument addressed to me.  Having given a history of the matter she said that she did not intend to argue article 6 of her petition.  She wished reduction of the whole letter of 4 February 2013 (No 6/3 of process).  The effect of that would be to return the matter to the immigration judge.  She questioned whether rule 353 had been complied with.  She referred me to Dongoll and FO;  and then looked in some detail at WM Congo.  Both the questions posed in that case had to be answered in the affirmative.  The matter was not for the Secretary of State to decide.  One had to imagine a notional judge deciding the matter and there had to be anxious scrutiny.  An example of that is seen in Dongoll.  The Minister must put herself in the shoes of the notional immigration judge.

[14]      She had to address the article 8 case.  She had done this but not properly.  (Counsel referred to No 6/3 at para 7).  Proportionality and legitimate aims were vital.  Having referred to document 7 she then took me to Nagre, where there were “exceptional circumstances”.  Here the relationship was genuine (she looked at 6/3 para 7 and 6/2 page 5).  The respondent has not dealt with any of these matters and so there had been no anxious scrutiny.  There was no detailed reference to the bank statement and that as a matter of fact they shared a family life (K v UK).  It did not matter that they were not married (Kussin).  Here there was a genuine commitment.  Counsel then referred to the status of the petitioner’s partner who had refugee status and could not leave and return to Zimbabwe.  That would end the relationship.

[15]      In her reply she referred to RA paragraphs 19 and 20 describing it as an extreme case.  Here too much weight had been put on adverse credibility findings which were themselves expressed in a narrow way.  She was critical of the author of No 7/1 and the emphasis of 7/3.

[16]      Mr McIlvride appeared for the respondent.  He asked me to refuse the prayer of the petition.  He referred to Dongall at 563.  For there to be a “realistic prospect” the chances had to be more than fanciful;  and the court would have to say that no Minister could ever reach the decision she did.  The decision was taken on the evidence provided and no new evidence was produced eg a tenancy agreement.  Also the “exceptional provisions” were not put before the Minister. 

[17]      The respondent had to consider two matters.  The first was what was encompassed by a “family relationship”.  Counsel referred me to document 7 in various places.  The Minister had given anxious scrutiny to her own document on the evidence provided to her.  That was the proper approach to the standard of proof.  She had not ignored anything favourable to the petitioner. 

[18]      The second matter was this.  The hypothetical immigration judge has to regard not only the new but the old.  (Rule 353).  To that end it had to include the decision of the original immigration judge (Clapham).  In that judgment there were adverse findings on credibility.  While that is not decisive, it is nonetheless important. 

[19]      It was interesting to take note of what was not put to the Minister in the two prior statements both of which post-dated December 2011.  He asked me to sustain his second plea.

[20]      Rule 353 provides:

“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn…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…”

[21]      As I have already indicated some eight authorities were submitted but most were not looked at in any detail since they are fact specific.  I take the guidance as to the proper tests to apply from WM (DRC) in England and FO in the Inner House.  These can be expressed thus.

[22]      The decision maker in determining whether there is a “realistic prospect of success” must consider whether there is a realistic possibility that an immigration judge might decide in favour of the claim on considering both the new and the previous material.  It is not for the Minister herself to think the new claim is a good one.  Her own view is a mere starting point.

[23]      It is not for the court to answer the question whether there is a realistic prospect of success in an appeal before an immigration judge but whether the Minister was unreasonable in reaching the view that there was not.

[24]      The hurdle the applicant has to surmount is a low one.  The inquiry must be directed at the particular appellant – it is not for the court to express a view whether a fresh immigration judge applying rule 353 would reach a view different from the earlier judges.  All the court can decide is whether the Minister did or did not satisfy the test of anxious scrutiny. 

[25]      In the two cases involved in WM a failure to consider two matters of fact allowed the court to conclude that there had not been anxious scrutiny.  The decision in FO is of course binding on me.  I also agree with the approach and careful analysis of Lord Hodge in RA, especially at paragraph 19 of his opinion.  Something needs be said about Nagre which is an important case. 

[26]      I now turn to look at Nagre which was relied on by both sides.  It is an important and helpful recent decision.  The claimant challenged the lawfulness of the new changes to the Immigration Rules (HC 194) including the Exception (Ex 1) on being incompatible with article 8.  He was also permitted to challenge the decision in his own case (para 2).

[27]      The judge (Sales J) set out the reasons why there was apparent tension between the rules and article 8 and the work of the Home Office to produce new rules to take account of experience and the domestic and Strasbourg case law.  After appropriate consultation they were passed by Parliament under the negative resolution procedure.  The rules are then set out relating to private life then family members then the exception and finally “exceptional circumstances”, which is the subject of a definition.  I observe that running through the rules is a thread saying that less weight attaches to circumstances where there is no immigration status or it is precarious or where earlier applications have been refused.

[28]      The claimant was an overstayer in breach of immigration controls.  Having met a woman he began living with her.  There were no children.  He applied to remain under article 8.  His claim was refused as it did not satisfy the rules relating to private life or family life including the exception Ex 1.  The decision letter did not indicate that any consideration had been given as to whether the case might be regarded as exceptional.  He sought judicial review and some five months later a revised decision letter was issued which expanded on the original reasons and did address the issue of exceptional circumstances (paras 21 to 23).  The claimant did not dispute the assessments and findings in the new letter but what he did contend was that the wrong test in relation to the family life test (my emphasis) of article 8 had been applied.  In effect too high a test had been imposed on him (“insurmountable obstacles”).

[29]      The judge went on to find that the rules were properly passed even though they did not and could not cover every article 8 type of case (paras 26, 27).  There will inevitably be some article 8 cases falling outside the rules which will always be the proper starting point.  If the rules do not apply then other criteria established by law have to be assessed as part of a proportionality evaluation (para 30) though not in every case.  If the rules do not fully dispose of the claim the Minister may be obliged to consider granting leave to remain outside the rules.  In view of all of this the judge concluded that the rules were lawful (para 36).

[30]      Sales J then considered the approach to proportionality when the “family life” had been established at a time known to be precarious because the claimant had no right to remain in the UK.  The proposition approved in a case from the Netherlands is that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8.  Many consistent cases were referred to for this as clear and constant jurisprudence showing the proper general approach to questions of proportionality.  There may be a range of factors of which “insurmountable obstacles” may only be one.  It is not a minimum requirement.  If there are no insurmountable obstacles then removal would only be disproportionate if there were found other features of a compelling nature showing that removal would be unjustifiably harsh.

[31]      He then went on to explain a contrasting test said to arise out of two other cases (not before me) and preferred the approach in the Strasbourg cases.  Dealing with the particular case before him (paras 50 to 53) he held that the case was covered by the rules and that it was not necessary to consider leave to remain outwith the rules.  Both letters were upheld and the reference as to whether the case was exceptional.  (As already noted in paragraph 24 that matter had more or less been conceded).

[32]      I was referred to MS a recent decision of an Extra Division.  The opinion of Lord Drummond Young is detailed with the utmost clarity and sets out what has to be done with these article 8 cases presented under the rules and those also considered outside the rules.  The decision is of course binding on me, and it is of course fact specific.  The case followed and approved of Izuazu [2013] UKUT 45 (a case not canvassed before me but in the judge’s bundle).  It also followed Nagre.  What the decision taker has to do is first to see if the claim can be disposed of under the rules, acknowledging that they cannot cover every case.  If the rules cover it there is no need to go further.  If they do not the decision taker has to assess article 8 applying criteria established by law, conduct the balancing exercise and reach a proportionality evaluation.  There has to be a good arguable case and the matter is not to be judged on a test of exceptionality or whether something is insurmountable.  The question in the end of the day may be whether the result for the claimant is an unjustifiably harsh outcome.  Appendix A to Izuazu page 27.

[33]      Kussin was a case which began as an asylum claim but became one based on a relationship with a woman at a time when his position was very precarious.  The judge found that at the critical date there was really only evidence of boyfriend and girlfriend and the Minister was entitled to reject it as substantiating a relationship akin to marriage.  He also said there was no reasonable prospect of an immigration judge being so persuaded to allow an appeal on that basis alone (para 17).  The article 8 claim (paras 18 to 21) failed mainly for reasons of the precarious position of the claimant as well as no legitimate expectation of being allowed to remain under the rules.  Finally he concluded that under article 8 the test was not insurmountable obstacles.  It was a question of what was reasonable against the factual matrix of the case, there being about five adverse reasons (paras 25 to 27).  He again concluded that there were no reasonable prospects that an immigration judge looking at the same material on appeal would allow an appeal on article 8 grounds.

[34]      I have also looked at Kroon v Netherlands 27 October 1994 (not cited but in the bundle).  That case did not deal with immigration but concerned an article 8 case to do with the paternity of a child.  It is not really in point save to observe that the “family life” discussed there (para 29/30) is very different from the present case.  I also observe that there were two powerful dissenting opinions.

[35]      K v UK was mentioned but in my view does not assist.  The point about protected family life was conceded. 

[36]      It is no longer a live issue but I have to notice that in the petition matters were raised about what was the original main claim.  Viz political persecution in part related to her uncle and his garage and bus business.  That matter was the subject of three adverse decisions in 2010 and 2011 (Nos 6/4, 6/5 and 6/6).  At the full hearing before Judge Clapham there were adverse findings of credibility (para 49).

[37]      The asylum claim was abandoned on the morning of the hearing before me.

[38]      Moving finally from matters of law to the case before me the decision letter has in my opinion followed the correct course.  Under the rules the claim for family life has failed on the very meagre evidence presented.  It is true that there is no mention of the miscarriage but that is nothing to the point and is not conclusive of any family life.  There is no family.  In my opinion the writer of the decision letter was entitled to reach that conclusion.  It is also important to note that this was the first time such a claim was made and when the petitioner’s immigration status was precarious.

[39]      I reach the same conclusion on the claim for private life.  The rules also do not cover it.  The period of residence is too short.

[40]      Paragraph 10 and 11 go on to show that the decision taker has considered and rejected the article 8 cases outwith the rules.  The balancing exercise has been done and a conclusion on proportionality reached.  In my opinion this cannot be faulted nor can the decision that it did not amount to a fresh claim.  The decision taker had (and said so) in mind the correct tests about anxious scrutiny before him.  Although the test for prospects of success is a low one I find no fault with the conclusion that here there are no realistic prospects.

[41]      Accordingly I refuse reduction, I repel the petitioner’s plea-in-law and sustain the second plea-in-law for the respondent.  Meantime I reserve all question of expenses.