Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 125

P1085/14

OPINION OF LORD KINCLAVEN

In the petition of

T A (A.P.)

Petitioner;

for

Judicial Review of decisions by the Secretary of State for the Home Department

Respondent:

Petitioner:  Forrest;  Drummond Miller LLP (for RH & Co Solicitor, Glasgow)

Respondent:  Maciver;  Office of the Advocate General

9 September 2015

Introduction and Overview
[1]        This is a petition seeking judicial review of decisions by the Secretary of State for the Home Department dated 16 April 2014 and 26 June 2014 (nos. 6/1 and 6/2 of process) rejecting the petitioner’s application for leave to remain in the United Kingdom.

[2]        The case came before me for a first hearing.

[3]        Mr Forrest appeared for the petitioner.  He invited me to find that the respondent had erred in law, to sustain the petitioner’s plea in law, and to reduce the decisions complained of.

[4]        Mr Maciver appeared for the respondent.  He contended that the decisions of the respondent were not unlawful.  He invited me to refuse the petition. 

[5]        Having considered the submissions of both parties, and the documents produced, I have reached the conclusion (for the reasons outlined more fully below) that the respondent’s submissions are well founded.

[6]        Accordingly, I shall sustain the respondent’s second plea-in-law, repel the petitioner’s plea in law and refuse the orders sought in the petition.

[7]        I shall reserve meantime the question of expenses.

[8]        I would outline the background and my reasons as follows.

The background

[9]        The petition and answers and the statements of issues can all be taken as read.  Parties are familiar with their terms.

[10]      The productions, which can also be referred to for their terms; were:

6/1       Notice of Decision dated 16 April 2014 issued by the respondent to the petitioner;

6/2       Letter dated 18 June 2014 from the petitioner’s solicitors to the respondent; and

6/3       Letter dated 26 June 2014 from the respondent to the petitioner’s solicitors.

[11]      In the course of the hearing I was referred to the following authorities:

• Article 8 ECHR;
• Marckx v Belgium [1979] 2 EHRR 330, pages 348-359, paragraphs 44 to 46;
• S and S v United Kingdom, (1984) 40 DR 196, Application No 10375/83, Decision of 10 December 1984, pages 196 to 199;
• Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31, [2003] INLR 170, pages 170 and 175-177, paragraphs 14 to 19 and 24 to 25;
• R (Razgar) v Secretary of State for the Home Department [2004]UKHL 27, [2004] 2 AC 368, paragraphs 17 and 20;
• MS (India) v Secretary of State for the Home Department [2013] CSIH 52, paragraphs 20 to 23, 28 and 30;
• R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin), paragraphs 25 and 29;
• R (MM (Lebanon)) v Secretary of State for the Home Department [2015] 1 WLR 1073, paragraphs 128 and 129;and
• R (Oludoyi & Ors) v Secretary of State for the Home Department [2014] UKUT 539.

The petitioner’s position

[12]      In essence, the petitioner’s position was as follows:

1.         that the respondent had erred in law in holding, in the letters dated 16 April 2014 and 26 June 2014, that family life did not exist between the petitioner and her adult children and grandchildren (Statements 7.1 and 7.2 of the Petition); and

2.         that the respondent had erred in law in holding in those letters that there was no good arguable case that the petitioner’s article 8 ECHR rights would be disproportionately interfered with if she was required to return to her country of origin (Statement 7.3 of the Petition).

The respondent’s position

[13]      In overview, the respondent’s position was as follows:

1.         that the respondent had not erred in law in reaching her conclusion that the petitioner had not established  family life in the UK for the purposes of article 8 ECHR;

2.         that the respondent had not erred in law in her treatment of the representations made by the petitioner’s agents in their letter of 18 June 2014 (no. 6/2 of process);  and

3.         that the respondent had not erred in law in finding that the petitioner had in her representations disclosed no “good arguable case”, within the meaning of the cases of Nagre and MS (both cited above) such that the petitioner might have been entitled to succeed under article 8 ECHR.

Discussion

[14]      The petitioner takes no issue with the respondent’s decision that the petitioner is not able to meet the requirements of paragraph 276ADE(1) of the Immigration Rules.

[15]      In the Notice of Decision dated 16 April 2014 (No. 6/1 of Process) the respondent stated, under the heading “Decision on Exceptional Circumstances”, inter alia:

“It has also been considered whether the particular circumstances set out in your application constitute exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant consideration by the Secretary of State of a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules.  You claim to enjoy a family life with your adult children and grandchildren who care for you and who are present and settled in the UK.  However, you have not made an application as an ‘adult dependant relative’ and as such can not be considered under those rules.  In any case, any such application would fail on the basis that entry clearance as an ‘adult dependant relative’ is a mandatory requirement for a further in country grant as such.  The family life you claim to enjoy with your adult children and grandchildren therefore does not constitute family life in the application you have made.  It is considered that the relationship with your settled family in the UK can continue through other communication methods from abroad.  Your application for leave to remain in the United Kingdom is therefore refused.”

[16]      The petitioner’s solicitors’ pre-action letter dated 18 June 2014 (no. 6/2 of process) sets out further details of the petitioner’s circumstances.  Inter alia that letter refers to the petitioner having had “a knee replacement surgery and has been temporally exempted from reporting requirements from 24 April 2014 onwards”.  Mention is also made of a letter from a Consultant Orthopaedic Surgeon faxed on 29 April 2014.

[17]      The respondent’s letter of 26 June 2014 (no. 6/3 of process) states inter alia that “The content of your letter (dated 18 June 2014) has been carefully considered”.  The respondent notes that the petitioner’s position is that “she has established a private life in the UK”.  On page 2 the respondent states that “in view of the above the Secretary of State was not satisfied that your client (the petitioner) is able to meet the requirements of paragraph 276ADE as sated above”.  The respondent then states (on page 2):  “I draw your attention to the case of MS”.  The case reference is given and paragraph [28] from the decision of the Inner House in MS is quoted in full. 

[18]      The respondent continues by stating inter alia (on page 3):

“You have put forward no evidence or argument that your client has a good arguable case that would require that leave to remain to be granted outside the immigration rules where EX.1 is not met.

You have provided no evidence that the relationship your client has with her daughter and grandchildren goes beyond that of normal emotional ties.

On no view could it be said that removal of your client would be disproportionate.”

Conclusions

[19]      In the whole circumstances, having regard to the submissions of counsel, the documents before me, and the authorities produced, I have reached the conclusion that the respondent considered the petitioner’s representations, applied the correct test and provided adequate reasons for her decisions.

[20]      It was not disputed that the relationship between grandparents and grandchildren (as well as between parent and child) is potentially capable of constituting family life under article 8 (Marckx v Belgium at paragraph 45). 

[21]      In general terms, as was said in S and S v UK (at page 198):

“Generally, the protection of family life under Article 8 involves cohabiting dependents, such as parents and their dependent, minor children.  Whether it extends to other relationships depends on the circumstances of the particular case.  Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal, emotional ties.”

[22]      For such other relationships a degree of dependency or support, involving more than the normal emotional ties, is required for article 8 family life to be established (Kugathas paragraphs 14 to 19 and 24 to 25).

[23]      The Inner House decision in MS is binding on me. 

[24]      In that case Lord Mackay of Drumadoon, delivering the opinion of the Court, said inter alia (in paragraph [28]):

“The decision maker should examine the circumstances put forward by the applicant and determine whether they disclose a good arguable case that the rules would produce an unfair or disproportionate result such that the applicant’s Article 8 rights would be infringed.  It is only if that test is satisfied that there is any need to go on to consider the application of Article 8 in detail.”

[25]      The conclusion of the Inner House is set out in paragraph [30] of MS.

[26]      In the present case, I can find no material error of law on the part of the respondent. 

[27]      I accept that the respondent had regard to the information before her.  That included information concerning the petitioner’s age and some information concerning medical condition. 

[28]      I should add that I agree with Mr Maciver that the petitioner’s reference to knee replacement surgery does not take the petitioner very far.  The information provided by the petitioner is somewhat inspecific. 

[29]      In the result, I do not accept the petitioner’s criticisms of the respondent.  The decisions (nos. 6/1 and 6/2 of process) contain no material error of law. 

[30]      The “good arguable case” test was not satisfied.

[31]      I am not satisfied that either of the respondent’s decisions should be reduced.

Decision

[32]      In the whole circumstances, for the reasons outlined above, I find for the respondent.

[33]      I shall sustain the respondent’s second plea-in-law, repel the petitioner’s plea in law and refuse the orders sought in the petition.

[34]      I shall reserve meantime the question of expenses.