Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 105

P43/15

OPINION OF LADY CLARK OF CALTON

In the petition of

TMK (AP)

Petitioner;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

for

judicial review of a decision by the respondent dated 28 November 2014 refusing to treat the petitioner’s further submissions as a fresh claim

Petitioner:  Dewar QC, Winter;  Drummond Miller LLP

Respondent:  Webster;  Office of the Advocate General

4 August 2015

History
[1]        The petitioner was born on 18 March 1982.  He is a South African citizen with a South African passport and speaks English which in an official language in South Africa.  He arrived in the United Kingdom on 28 August 2005 and sought leave to enter as a visitor for three weeks.  On the same date, leave to enter was refused as he was not believed to be a genuine visitor.  The petitioner then claimed asylum on the same date.  His asylum application was refused on 6 September 2005.  On 14 September 2005 he appealed.  The appeal was dismissed on 31 October 2005.  Following a High Court review on 15 November 2005, the review was refused.  On 2 December 2005 his appeal rights were exhausted.  On 31 January 2013 the petitioner applied for leave to remain in the UK on the basis of his family and private life.  On 12 June 2013 this application was refused with no right of appeal.  On 1 July 2013 a pre-action protocol letter was raised.  On 3 January 2014 a judicial review was lodged.  On 12 June 2014 permission to proceed with judicial review was refused.  On 13 November 2014 the petitioner was detained at a reporting centre.

The submission of a fresh claim
[2]        Thereafter, the petitioner made application to the respondent by letter setting out additional grounds for application relying on article 8 of the European Convention on Human Rights (ECHR).  The representations narrate in manuscript:

“I have been in this country for the past nine years and have lived with family and friends who I love and care for dearly

In this country I reunited with my dad with whom I live with together with my step mum and three siblings who I have grown fond of and could not picture myself living without

My little sister is only nine and I adore her dearly I play a vital role in her life for example, I wake to take her to school everyday, help her with her school work and at weekends I spend as much time as I can with (sic) doing all sorts of activities, I feel if I was to leave this country the bond that we share would be broken and in time this would affect her as she is still a child

In South Africa I have no family or friends the only expirience (sic) I have ever had in that country was the few weeks I spent when I was in transit coming to the United Kingdom

I have spent most of my adult life in this country and have grow (sic) accustomed to the British culture that it would be difficult to adopt any other culture

My support system is here in the United Kingdom my friends, family and church members that have aided me I (sic) times of need even when I spent over 2 months in hospital on the brink of death please do not remove me from this country

The only reason i hold a South African passport is because my dad was born in South Africa where he lived till he was about five and they moved to Zimbabwe, where he grew up and lived till he finally moved to the United Kingdom because of this I have no ties with South Africa except for the attainment of the travel documents I used to come here

I plead with you to let me stay so I can be with my family and watch my little sister, brothers, nieces and nephews grow, to remain within the family unit that I grew up in and have learnt to rely on in times of need and emotional distress”

[3]        The application was considered under paragraph 353 of the Immigration Rules which states 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 has not already been considered;  and taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.  It is not disputed that the Secretary of State (by an official acting on her behalf) considered the petitioner’s said application both under the applicable Immigration Rules (as amended) and outside the immigration rules. 

[4]        In the decision letter dated 28 November 2014, the respondent considered the petitioner’s application in terms of appendix FM (family members) of the Immigration Rules and refused the application on the basis that the petitioner did not meet the requirements set out in the rules.  This is set out in paragraphs 12 to 34 of the decision letter.  There is no challenge in the judicial review to that conclusion. 

[5]        The respondent also considered the application outside the Immigration Rules in paragraphs 35 to 41.  Paragraph 41 states:

“For all the reasons given above it is considered your further submissions, taken together with the material previously considered, would not have a realistic prospect of success if they were to be treated as a fresh application.  It is therefore not considered that your removal would breach your rights under article 8 of the ECHR.”

The conclusion in paragraph 42 states:

“As we have decided not to reverse the decision on the earlier claim and have determined that your submissions do not amount to a fresh claim, you have no further right of appeal”

The judicial review proceedings
Submissions by counsel for the petitioner
[6]        The petitioner sought reduction of the decision in the decision letter dated 28 November 2014.  A number of alleged errors of law were identified in the petition but the issues in dispute were more narrowly focussed in the submission by senior counsel for the petitioner.  In particular he made it plain that his criticisms were restricted to the respondent’s decision making in relation to the article 8 rights of the petitioner outside the Immigration Rules.  Senior counsel submitted that he did not support paragraph 12 of the petition which made certain criticisms about a failure to resolve contradictory findings. 

[7]        The primary submission of senior counsel was that the respondent erred in her overall approach to the article 8 assessment in failing to carry out a proper proportionality assessment and apply the correct legal test.  Reference was made to Gulshahbaz Ahmed Mirza v Secretary of State for the Home Department [2015] CSIH 28 and Mohammad Irfan Khan v Secretary of State for the Home Department [2015] CSIH 29.  Counsel submitted that the task of a decision maker was to consider and decide whether an interference with private and family life may be justified by the state as proportionate to a legitimate aim such as immigration control.  That depends upon an evaluation of the whole circumstances of the case.  The issue to be determined is whether the interference with private and family life is proportionate to some legitimate objective.  It should be demonstrable from the decision that the respondent has addressed the issues applying the correct legal test.  Counsel prayed in aid the opinion of Lord Eassie in Mirza, paragraph 21, where he quoted with approval Lord Reed in paragraph 74 in his judgment in Bank Mellat v H M Treasury [2014] 2 AC 700:

“The judgment of Dickson CJ in Oakes provides the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning. Its attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit. The approach adopted in Oakes can be summarised by saying that it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. The first three of these are the criteria listed by Lord Clyde in De Freitas, and the fourth reflects the additional observation made in Huang. I have formulated the fourth criterion in greater detail than Lord Sumption, but there is no difference of substance. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.”

[8]        Counsel submitted that on a fair consideration of the decision letter the respondent appears to be applying a test of exceptionality.  That is the wrong test.  In a detailed consideration of paragraphs 35 to 41 of the decision letter, counsel drew attention to the repeated use of words such as “genuinely exceptional”, “exceptionally dependent” and the equating of “exceptional circumstances” with “unjustifiable hardship”.  Counsel under reference to MS v Secretary of State for the Home Department [2013] CSIH 52 paragraphs 27 to 30, submitted that in earlier case law there were some observations that the test for cases where the article 8 right required independent considerations was one of exceptionality but that had been criticised.  Adopting the words of Lord Drummond Young, who delivered the opinion of the court in MS in paragraph  30, counsel submitted: 

“...The fundamental issue raised by article 8 is an assessment of on one hand the requirements of an effective immigration policy, including the enforcement of that policy by removal from the United Kingdom, and on the other hand the right of the individual concerned to private or family life.  That exercise involved an assessment of proportionality.  In most cases, the new rules will ensure that assessment is properly carried out.  In some cases, however, the rules will not produce a fair result that accords with article 8.  In those cases the Home Secretary, acting through immigration officials, will need to consider whether leave should be granted outside the rules.  That will require an assessment of the precise circumstances of the individual case, taking account of all factors that are relevant....”

[9]        Finally counsel submitted that the respondent erred in law by failing to consider the best interests of the petitioner’s nine year old sister who shared the same father as the petitioner but who had a different mother.  He referred to ZH (Tanzania) v Secretary of State for the Home Department (2011) UKSC 4 paragraphs 26 to 38 and 39.  Reference was also made to Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 paragraph 10.  Counsel accepted that if his primary submissions were unsuccessful, it might be difficult to succeed on the basis of the last submission alone bearing in mind the very limited information provided by the petitioner and the nature of the information.  Nevertheless he submitted that this error should also be taken into consideration. 

Submissions by counsel for the respondent
[10]      Counsel for the respondent invited me to sustain the respondent’s third plea‑in‑law, repel the petitioner’s pleas‑in‑law and refuse the orders sought by the petitioner.

[11]      Counsel submitted that it was not disputed by the respondent that article 8 was engaged.  He accepted that an article 8 proportionality assessment required to be carried out and submitted, that it is plain from the decision letter, that was done.  There was no error in approach.  Although there was a difference between the article 8 assessment under the rules and the article 8 assessment outwith the rules, it is important to understand the full context of the decision letter.  It is obvious from paragraphs 13 to 16 of the decision letter that the facts and circumstances are well understood by the respondent, there is acceptance that there is family life and there is a consideration of the issues both within and outwith the rules.  When the matter is considered outwith the rules, guidance is given under the general heading of “exceptional circumstances” in the instructions to officials in paragraph 3.2.7d.   The guidance explains that “exceptional” means:

“...circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate.  That is likely to be the case only very rarely.”

Reference was made to the discussion in MS in paragraph 7.

[12]      Counsel focussed on paragraph 38 of the decision letter which states:

“... It is noted during your asylum interview you stayed with your aunt in Cape Town, which is not considered to demonstrate [a] tie to South Africa.  It is considered that you are in reasonable health and could return to South Africa where you will be able to reside and seek employment with the skills you have gained from the United Kingdom.  You have no children, or property in the UK, and no substantial domestic commitments.  There is no evidence that you are exceptionally dependent on anyone in the UK or anyone is dependent on you.  You are an immigration offender and substantial weight has been given to the public interest in maintaining and enforcing immigration control.  Any friendships you have formed whilst in the United Kingdom can be maintained via modern communication upon your return to South Africa, your removal is in accordance with the law and will not have unjustifiably harsh consequences.”

Counsel submitted that in considering the decision letter, it should be borne in mind that very limited information was made available to the respondent and all the relevant information, such as it was, was addressed by the Secretary of State and weighed in the balance. 

[13]      In the second part of his submission, counsel submitted that even if the court did not accept his primary submission, this was a case which was bound to fail and any error in law was not material under reference to Ganesabalan v Secretary of State for the Home Department [2014] EWHC 2712 (Admin) paragraph 39 which states:

“The critical question, therefore, becomes whether the court can be satisfied in this case that the decision would inevitably have been the same had the decision addressed the question of discretion.  ... I should explain that I accept and the point is well illustrated by Halleemudeen paragraphs 61, 64 and 68, that if Miss Rowlands can satisfy the court on the question of inevitably of outcome, it could not be appropriate to grant judicial review.  That is because she would have demonstrated that the error of law was not a material one.  Put another way she would have demonstrated that it could not be an appropriate exercise of discretion to grant any relief.”

[14]      Finally counsel dealt with the submission about the best interests of the child under reference to Zoumbas paragraph 23.  He submitted that the respondent clearly had in mind the best interest of the child and in paragraphs 16 and 38 of the decision letter highlighted the relevant factors including the fact that there was no dependency of the child on the petitioner and that the child had parents and a support network. 

[15]      In further support of his case, counsel sought to address me on the implications of section 117 of the Immigration Act 2014.  I considered this was unnecessary for the determination of the case.

Response by counsel for the petitioner
[16]      In response, counsel for the petitioner did not dispute in principle that the court is entitled to say that regardless of the error of law, if failure was the inevitable outcome, judicial review could be refused.  He submitted however that such a refusal would only be appropriate in very clear cases.  Thus if error of law is demonstrated, the court should allow the case to return to the decision maker who had the responsibility for the merits of the decision making.  Counsel drew attention to the caution expressed by Lord Eassie in Khan in paragraph 14 where he states:

“For completeness, we would record that, as we understood it, the submission of counsel for the Advocate General on absence of materiality proceeded on the basis of the judgment of the Deputy High Court Judge in Ganesabalan v Secretary of State for the Home Department, particularly paragraph 39 which refers to the discretionary nature of judicial review in England and Wales.  We intend no criticism of counsel but in the absence of discussion of the matter and citation of Scottish authority we would not wish to be taken as necessarily accepting or endorsing a proposition that the exercise of the supervisory jurisdiction of the Court of Session is in every respect equally discretionary in its nature to the judicial review jurisdiction practiced by the courts in England and Wales.”

Decision
[17]      I have set out the submissions at some length in deference to the care and attention which counsel have clearly given to the case.  Despite the persuasive presentation of counsel for the petitioner, I am not persuaded by the submissions on behalf of the petitioner. 

[18]      I have set out in paragraph [2] the representations made by the petitioner to the respondent.  One can of course sympathise with the petitioner’s desire to remain with his father, friends and step‑siblings of whom he has grown fond.  But he did so in the full knowledge that he came as an adult to the UK illegally and has remained here illegally since 28 August 2005.  There is no challenge in this case to the article 8 assessment carried out by the respondent within the rules.  In my opinion on a fair reading of the decision letter, it is plain that the respondent thereafter embarked on an assessment of proportionality outwith the rules and took into account all the relevant facts and circumstances put forward by the petitioner.  Having done that the respondent took into account the immigration history of the petitioner and that substantial weight is given to the public interest in maintaining and enforcing immigration control.  In doing so the respondent expressly referred to the factors in the balancing exercise.  In these circumstances taking into account the information relied on by the petitioner and the weight to be given to immigration control, I find it entirely unsurprising that the balancing exercise was found by the respondent to be against the petitioner.  On a fair reading and taking into account the context, I do not consider that an “exceptionality test” contrary to the Strasbourg jurisprudence was applied by the respondent despite the references to “exceptional” in various forms.  I have no difficulty in concluding in this case that this does not indicate that the wrong legal test was applied.  I also consider that on a fair reading of the letter there is demonstrated a consideration of the best interests of the child stepsister whom the petitioner states that he helps to care for.  There is an express conclusion in the letter that the sister is not dependant on care from the petitioner.  I accept that the reference to the best interests of the child is not made expressly.  But in the context of this case, I consider that it is enough to recognise that this is a young sister being cared for by her parents with no dependency on the petitioner and that is considered as part of the proportionality exercise.  I consider that there is no more which requires to be said by the respondent given the nature of the facts presented to the respondent. 

[19]      For these reasons, I consider that there is no merit in this judicial review and I refuse the petition.