Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 116

P41/15

OPINION OF LADY CLARK OF CALTON

In the Petition of

TN

Petitioner;

for

Judicial Review of a decision by the Secretary of State for the Home Department

Dated 30 September 2014

Respondent:

Pursuer:  McGuire;  Drummond Miller LLP

Defender:  Webster;  Office of the Advocate General

25 August 2015

Summary
[1]        The petitioner, born 12 January 1989, came to the UK on 11 February 2003 when he was 14 years old to join his father who was working in the UK in accordance with a work permit.  The petitioner has subsequently acquired a lengthy immigration and criminal history.  Following the completion of a custodial sentence in February 2012, the petitioner was moved to immigration detention pending resolution of various legal issues in his appeal against deportation.  The petitioner was granted bail by an immigration judge on 10 April 2012.  The appeal against deportation was dismissed on 9 May 2012 and he was granted permission to appeal to the First-tier Tribunal on 1 June 2012.  The petitioner’s bail was revoked at a bail review hearing following information from his parents that they were not willing to act as cautioner for him as he had been disruptive and not adhering to his bail conditions.  He was detained under immigration powers and it was noted that there was an outstanding arrest warrant as a result of which the petitioner appeared at Glasgow Sheriff Court on 10 July 2012.  He was given bail by the court and was subsequently released from immigration detention.  On 2 August 2012, the petitioner was arrested and thereafter was convicted of attempted fraud and sentenced to six months imprisonment with a release date of 1 November 2012.  Since 1 November 2012 the petitioner has been moved to immigration detention and is presently in detention in England.  Various legal challenges have been made to the respondent’s attempts to deport him.

[2]        It is unnecessary to set out in more detail the extensive immigration history of the petitioner.  This is summarised by the Lord Ordinary in a previous application for judicial review reported at (2014) CSOH 85 in paragraph 4.  The petitioner was successful in that application.  The immigration factual summary (6/14 of process) summarises the criminal convictions of the petitioner.  The petitioner’s criminal record dates from 2007 to 2011 and includes some 18 different offences including 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.  There are some eight custodial disposals.  The longest sentence is a sentence of 8 months 29 days in 2010 for a conviction of theft by shoplifting.  In the early stages of the petitioner’s offending behaviour, he was convicted of theft by housebreaking in January 2008 and given a probation order for one year with a condition to attend psychiatric treatment.  It appears the petitioner does suffer some mental health difficulties although there does not appear to be a clear diagnosis and there have been some problems about him taking prescribed medication.

Information about the petitioner’s daughter
[3]        It is not disputed that the petitioner is the father of a child CW born in March 2011.  The mother of CW and CW are both UK citizens.  The child CW has had a difficult early childhood.  She was rejected by her mother, who was in a relationship with someone other than the petitioner, and did not realise until the birth that CW was the petitioner’s child.  CW was left in the care of her maternal grandparents when she was a few days old.  The mother did not inform the petitioner of the birth and he had no knowledge of this.  Sometime in 2012 the petitioner and his family became aware of CW for the first time.  At that date the petitioner was detained in an immigration centre but contact was established between CW, the maternal grandparents and the petitioner’s parents.  In March 2014, the Home Office refused to allow the petitioner to be escorted to a DNA testing facility to establish paternity.  The basis for that refusal is recorded in 6/14 of process which states:

“A response was sent reiterating that the Home Office would not be prepared to do this as it was accepted you have a relationship with your daughter, ... .”

[4]        Despite difficulties, including the fact that the petitioner is detained in an immigration centre in England and the child CW is resident in Scotland, the petitioner has met CW on a number of occasions when she has been brought by his parents to the detention centre.

[5]        Because of problems with the care of CW by the maternal grandparents, social workers became involved.  Eventually a decision was taken by social workers that it was not in the best interests of CW to stay in the care of her maternal grandparents and the petitioner’s parents were asked by social workers to provide a permanent home for CW.  Since May 2014, CW has lived with the parents of the petitioner in an arrangement which appears to be approved by her maternal grandparents and her mother.  Following a kinship care panel held on 28 October 2014 (6/12 of process) the community social work manager wrote to the parents of the petitioner and advised them that the placement of CW with them had been approved.  This placement is much welcomed by the petitioner and his parents but is not without difficulties for the petitioner’s parents.  Both parents are working in responsible jobs and the petitioner’s mother has had health problems but she has now returned to work.  In the affidavit from the petitioner’s mother (6/11 of process), she explains that they are reliant on the maternal grandparents for some child care albeit there has been difficulty with two different lifestyles.  There has been increasing contact between CW and  the petitioner and CW is very aware of the petitioner as her father and constantly asks after him.  The petitioner and both his parents wish the petitioner to return to his family home to live with his parents so that he can be actively involved with them in the care of CW.  It is the assessment of the petitioner’s mother that CW would react very badly and be very upset if she was told that she would not see the petitioner again because he had been deported.

The grounds of the judicial review before this court
[6]        By letter dated 17 July 2014, (6/5 and 6/6 of process) detailed representations were made to the respondent in terms of paragraph 353 of the Immigration Rules to treat the representations as (1) an application for leave to the petitioner to remain in the UK on the grounds of article 8 ECHR and (2) an application to revoke a deportation order made on 7 March 2012.  By letter dated 30 September 2014 (6/7 of process) the respondent stated that the further submissions have not been considered under paragraph 35(3) of the Immigration Rules.  Having considered the submissions, the respondent decided to certify the claim under section 94 of the Nationality Immigration and Asylum Act 2002 (the 2002 Act).  The challenge by the petitioner in this judicial review was focused on the decision making of the respondent under and in terms of section 94.

The statutory provisions
[7]        Section 94 of the 2002 Act makes provision in relation to certain appeals from within United Kingdom in relation to unfounded human rights or asylum claim and limited the appeal rights of an applicant if the Secretary of State certifies the claim or claims as clearly unfounded.

Submissions by counsel for the petitioner
[8]        Counsel for the petitioner invited me to sustain the first plea in law for the petitioner.  In his first chapter, counsel set out the background under reference to paragraphs 4 to 9 of the decision of the Lord Ordinary in the previous judicial review.  He made reference to the application letter dated 17 July 2014 (6/5 of process) which explained the change of care in residence of CW and the view of the social work services to the effect that it is not in CW's best interests to reside in the care of the maternal grandparents due to this being an unmanageable risk.  This is the reason CW was moved to reside with her paternal grandparents and these arrangements are being supported by social work services.  Reference was also made to the ill-health of the petitioner’s mother.  Counsel accepted that the information from the petitioner’s mother in her affidavit dated 24 December 2014 post-dates the respondent’s letter of refusal.  It is plain however that there is a very material change and that the existing bond between the petitioner and CW will be fostered and strengthened by this change.

[9]        Turning to the legal basis of the test for certification, counsel submitted that there was no dispute between the parties about the test to be applied.  He made reference to R (Yogathas) v Secretary of State for the Home Department (2003) 1 AC 920 in particular in paragraph 51, Lord Hope of Craighead states:

“The question for the Secretary of State was whether, bearing in mind these principles, the allegation by Thangarasa that there was a breach of his human rights was so clearly without substance that it was bound to fail.”

[10]      Counsel submitted the respondent was obliged to consider whether there was an exception to deportation on the basis of family life with a child.  The relevant immigration rules as set out in the decision letter state:

“Paragraph 399

(a)        the foreign criminal has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i)         the child is a British citizen;  or

(ii)        the child has lived in the UK  continuously for at least the 7 years immediately preceding the date of the immigration decision;  and in either case

(a)        it would be unduly harsh for the child to live in the country in which the person is to be deported;  and

(b)        it would be unduly harsh for the child to remain in the UK without the person who is to be deported.”

[11]      Counsel submitted that on the facts before the respondent there was clearly some prospects of success for the petitioner on the only two points that were in dispute.  The respondent concedes that the child is a UK citizen and also concedes that it would be unduly harsh for CW to live in the country to which the petitioner is to be deported.  The respondent had previously found in a decision dated 25 November 2013 that the petitioner “... is in a genuine and subsisting relationship with CW ...”.  There is a stronger case now available to the petitioner in that CW is living with his parents who are very supportive of CW continuing her relationship with the petitioner.  The only other issue in dispute in this case is whether it would be unduly harsh for the child to remain in the UK without the petitioner if he was deported.  That requires an evaluation or judgement to be made but it cannot be said that, on the facts of the case, the application is bound to fail even accepting that the petitioner has a persistent criminal record.  In any event it also cannot be said that the compelling circumstances submission is bound to fail.

[12]      The respondent has chosen to approach this section 353 application not by applying the test which would be appropriate to a section 353 application but by applying a much higher test.  There is nothing in the respondent’s letter dated 30 September 2014 which indicates that the respondent has applied the correct test.  The only reason given for certification is that “there are no new grounds”.  Esto, the respondent has applied her mind to the “bound to fail test”, her conclusion is Wednesbury unreasonable. 

[13]      Finally, counsel submitted that in any event the respondent’s decision was Wednesbury unreasonable when she concluded that there was no compelling circumstances.  Reference was made to Lebbink v Netherlands (2005) 40 EHRR 18, 417 in which it was accepted that family life may be created by other factors beyond co-habitation.  It was a question of fact which depended in practice on the existence of close personal ties.

Submissions by counsel for the respondent
[14]      Counsel invited the court to sustain the respondent’s first plea-in-law, repel the petitioner’s pleas and dismiss the petition.  He submitted that the issues in the case could be distilled into three questions.  Firstly, was it within the bounds of reasonable decision making for the respondent acting reasonably to conclude (1) that there is no prospect of the petitioner demonstrating to an immigration judge that he had a genuine and subsisting parental relationship with CW;  (2) that it would be unjustifiably harsh for CW to remain in the UK if the petitioner is deported;  and (3) in any event, there were no compelling circumstances to justify grant of leave.  In the circumstances of this case, all three questions should be answered in the affirmative.  In developing his submissions, counsel prayed in aid R (Yogathas) v Secretary of State for the Home Department (2003) 1 AC 92 paragraph 14.  Lord Bingham of Cornhill states:

“Before certifying as ‘manifestly unfounded’ an allegation that a person has acted in breach of the human rights of a proposed deportee the Home Secretary must carefully consider the allegation, the grounds on which it is made and any material relied on to support it.  But his consideration does not involve a full-blown merits review.  It is a screening process to decide whether the deportee should be sent to another country for a full review to be carried out there or whether there appear to be human rights arguments which merit full consideration in this country before any removal order is implemented.  No matter what the volume of the material submitted or the sophistication of the argument deployed to support the allegation, the Home Secretary is entitled to certify if, after reviewing this material, he is reasonably and conscientiously satisfied that the allegation must clearly fail.”

[15]      Counsel referred also to MF (Nigeria) v Secretary of State for the Home Department (2014) 1 WLR 544.  This case considers the circumstances in which the deportation of a foreign national criminal is contrary to article 8 ECHR and the effect of the new rules which introduced for the first time a set of criteria by reference to which the impact of article 8 in criminal deportation cases was to be assessed.  Counsel submitted that the petitioner’s circumstances did not fall within the rules.  The respondent was entitled to conclude on the facts that there was no genuine subsisting parental relationship.  Counsel appeared to suggest that, previous decision making to the contrary, was mistaken or in error.  In any event, bearing in mind the very limited relationship between the petitioner and CW and the fact that she is cared for not by the petitioner but by his parents, paragraph 399(1)(ii)(b) is not satisfied.  For most of the period of CW’s life, the petitioner has been in immigration detention and when he was on bail, he showed little evidence of responsibility.  There is no evidence in this case that the petitioner, in contrast to his parents, has any genuine interest in acting as a responsible father to care for CW.  Counsel accepted that if the petitioner was deported, CW may lose all practical contact from her biological father but the real support available for CW was with the petitioner’s parents and there was also social work involvement.

[16]      The respondent was entitled to reach the decision which she did within the rules and there was nothing in the circumstances of this case to lead to a decision in favour of the petitioner.  The respondent had considered carefully whether there were very compelling circumstances such that the petitioner should not be deported.  The respondent was entitled to conclude that she did not accept that there are very compelling circumstances which outweigh the public interest in seeing the petitioner deported.

[17]      In relation to the test to be applied, it is plain when the respondent refers to certification that she is considering the matter under section 94.  There is only one test in section 94 and that is the test that the application is bound to fail.  The respondent plainly had in mind the correct test and applied it.

Decision
[18]      In considering the decision letter of the respondent dated 30 September 2014, my starting point is paragraph 399 of the Immigration Rules as this was the main focus of the case presented to me.  As I understand MF (Nigeria) the new rules, including rule 399, are designed to enable the decision maker to take the relevant article 8 criteria into account and thus where the foreign criminal has established that paragraph 399 applies, this establishes that his deportation would implicitly be contrary to article 8.

[19]      It is not disputed in this case by the respondent that the child CW is a British citizen and that it would be unduly harsh for the child to live in the country to which the petitioner is to be deported.  Counsel for the respondent sought to persuade me that the respondent was entitled to conclude, as she did at page 3 of the decision letter, that “it is not accepted that your client has a genuine and subsisting parental relationship with his child”.   In my opinion on the facts of this unusual case and standing the historical acceptance by the respondent that there is a genuine subsisting relationship, the respondent was not entitled to conclude on that issue that the application was bound to fail.

[20]      In order to succeed under paragraph 399, the rules also require a positive answer to the final question:  whether it would be unduly harsh for the child CW to remain in the UK without the petitioner.  The respondent decided against the petitioner in relation to this question mainly on the basis that CW’s maternal family, and paternal grandparents are in the UK and that CW has been in the care of her grandparents since birth.  The respondent stated that CW has other family members, apart from the petitioner, who can and have cared for her.  Reference is also made to the social work report involvement: 

“If the parental grandparents are unable to care for C… consideration would have to be given to completing a full parenting capacity assessment on your client TN… because to our knowledge he has resided in London and has not been consistently involved in C’s life”. 

From this reference, this conclusion is made:  

“This indicates that they have not considered that residing with your client would be in the child’s best interest, and also indicates that the relationship between your client and his child has not changed since the child was placed in the care of her paternal grandparents.” 

I consider this reasoning to be flawed.  The respondent was given information that the family plan, supported by both the maternal and paternal family members, and the petitioner, was to have the petitioner and CW reside with his parents with the petitioner actively involved in CW’s care.  It has not been possible to implement that plan in full as the petitioner is in immigration detention.  But it has now been substantially implemented to the extent that CW is in the care of the petitioner’s parents.  It is not perhaps surprising in the circumstances of this case that the social work department has not carried out a full parenting assessment in respect of the petitioner.  It is of more relevance, albeit not considered by the respondent, that no condition restricting or prohibiting contact between CW and the petitioner has been imposed by social workers.  It is also of relevance that the family plan for this child envisages CW growing up with care provided, albeit not exclusively, by the petitioner.

[21]      The decision letter of the respondent considers only the physical welfare of CW and there is no assessment of her emotional and long-term welfare if the petitioner is deported.  On that issue, as it is not disputed by the respondent that CW is a UK citizen who will live in the UK, the effect of deportation of the petitioner will mean that CW and the petitioner will suffer a prolonged separation probably for the rest of CW’s childhood and at a stage when she is old enough to know her father and suffer deprivation.

[22]      The respondent has chosen to apply a high test in this case.  In my opinion it is plain from the history of this case that there have been substantial changes of great significance for CW in her short life.  The mere fact that CW has been fortunate enough, because of her relationship with the petitioner, to find a home with the petitioner’s parents for the foreseeable future does not in my opinion inevitably result in a negative answer to the question whether in the circumstances of this case it would be unduly harsh for CW to remain in the UK without the petitioner.  In my opinion a decision maker might reasonably conclude that the answer is in the affirmative in the unusual circumstances of this case, taking into account that CW was rejected at birth by her mother, her residence in the care of maternal grandparents is considered to pose unmanageable risk to her, and that the parental grandparents for age, health and work reasons wish the assistance of the petitioner with CW’s care and he wishes to assist.  In my opinion, in the circumstance of this case, no reasonable decision maker could conclude that the petitioner is bound to fail in establishing that the relevant rules in paragraph 399A apply in this case.

[23]      It is not clear from the certification at page 4 of the decision letter that the respondent applied “the bound to fail” test.  The only reason given for certification is that there “are no new grounds”.  There is in my opinion new information of significance and the respondent requires to engage with the information and give reasons why certification is made.

[24]      I consider that this case is capable of being determined in the context of the Immigration Rules.  No additional factors were put forward as ”compelling reasons”,  I am not therefore persuaded that there is merit in the submissions of counsel for the petitioner which I have set out in paragraph 13.

[25]      For these reasons, I grant an order of reduction in respect of the certification under section 94 by sustaining the first plea in law of the petitioner.  I repel the pleas in law of the respondent.