Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 145

P1104/14

OPINION OF LORD McEWAN

In the petition

ROSHAN LAL

Petitioner;

for Judicial Review of a decision of the Secretary of State

Pursuer:  Caskie;  Drummond Miller LLP

Defender:  MacIver;  Office of the Advocate General

30 October 2015

[1]        In this matter the petitioner seeks judicial review of a decision of the Secretary of State to refuse the petitioner leave to remain and her certification of that decision.  The challenge was only to what was called the second decision.

[2]        There are no disputed issues of fact and I now set out in summary the simple history of what has happened.  The petitioner is aged 25 and a citizen of India.  He came to the UK on a student visa on 19 March 2012.  His visa was valid till 15 August 2013.  He formed a relationship with a British citizen and began to live with her from March 2013.  Having decided to marry, a wedding was arranged for 2 September 2014 at Grangemouth.  The respondent’s officers attended the wedding and detained him as an overstayer.  He was released on bail and on 4 November 2014 the couple married without objections.  They have co‑habited ever since.  He applied for leave to remain as a spouse.  That application was refused in May 2014.  Further representations were made and again refused in October.  That decision was certified under section 94 of the Nationality, Immigration and Asylum Act 2002.  More representations were made and again refused and certified.

[3]        It is convenient here to remind myself of the terms of the statute since India is in the list of “safe” states.  Section 94 enacts as follows inter alia:

“(1)      The Secretary of State may certify a … human rights claim as clearly unfounded.

(3)        If the Secretary of State is satisfied that a claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (1) unless satisfied that it is not clearly unfounded.

(4)  Those States are

…

(y)  India.”

[4]        The amended petition and answers were not much referred to in the argument before me which largely turned on a few cases fully cited and the productions in no 6 of process.  Mr Caskie’s main argument hinged on the section 94 certification stressing that the real point was what a hypothetical non perverse immigration judge would think.  He did refer in the petition to paragraphs 9, 15, 16, 30, 45 and 46, but in relation to these almost nothing was advanced about the many authorities referred to in the passing.  Only the cases I have looked at fully were properly canvassed before me.  This may not matter a great deal since what is important is the productions.

[5]        At the hearing the following cases were fully canvassed before me viz:

-           Boultif v Switzerland 2001 33 EHRR 50

-           R(L) v Secretary of State for the Home Department [2003] 1 WLR 1230

-           R(AK (Sri Lanka)) v Secretary of State for the Home Department [2010] 1 WLR 855

-           Harrison (Jamaica) v Secretary of State for the Home Department [2012] EWCA 1736

-           Mirza v Secretary of State for the Home Department [2015] CSIH 28

-           Khan v Secretary of State for the Home Department [2015] CSIH 29

-           Ashiq v Secretary of State for the Home Department [2015] CSIH 31

A number of other cases were mentioned in passing or merely referred to as examples viz:

-           Erimako v Secretary of State for the Home Department [2008] WL 371109

-           Ruiz Zambrano v ONEm [2011] 2 CMLR 46

-           AMC v Secretary of State for the Home Department [2011] CSOH 155

-           Sanade (British Children etc) Rae [2012] UKUT 48(1)(a)(c)

-           MS (India) v Secretary of State for the Home Department [2013] CSIH 52

[6]        In opening Mr Caskie referred to the facts and said that the issue was the section 94 certification asserting that the claim was “clearly unfounded”.  That certification should be reduced and the result of that would be that the matter would go before an immigration judge.  The refusal decision was that the claim did not meet the rules and there were no exceptional circumstances applying.  He took me at once to AK (Sri Lanka) and the discussion in the Court of Appeal of the comparison of the test of “clearly unfounded” (section 94) and “(no) realistic prospect of success” (rule 353).  The point he made of it was to say that the test under rule 353 (“fresh claims”) was a “low hurdle” and the same should apply to section 94 (“the certification”).  The true question was, if the matter was put before a special immigration judge would the petitioner be bound to lose.  The court here had to consider the respondent’s decision that the case was bound to fail before an immigration judge.  Such a judge was one most favourable as possible to the petitioner without being perverse.  Here the hurdle was lower than a rule 353 case.

[7]        In the present case the respondent had relied on insurmountable obstacles and article 8 outside the rules.

[8]        In the event that the petitioner succeeds on the issue of insurmountable obstacles he should be allowed to stay.  What then was an “insurmountable obstacle” asked counsel.  He took me to the well‑known case of Boultif arguing that very little was required in that case.  He asked me to consider Mirza paragraphs 2 and 16 to 21 pointing out that in the present case the petitioner had only overstayed by two weeks.  He contrasted Ashiq at paragraphs 22 to 24.  There could only be one answer in that case but the present case differed materially.  Mr Caskie next looked at Khan, paragraphs 6, 8 and 11 to 14.  No 6/10 of process was important when considering section 94 certificate and should be applied.  He looked at the introduction and paragraphs 2.1 and 2.2.  Relevancy was the test. 

[9]        He then argued under reference to no 6/8 of process that the facts and circumstances were all in favour of the petitioner.  He drew my attention to the needs of the mother-in-law and the need for her daughter to care for her.  He pointed to the travel advice of the Foreign and Commonwealth Office about the risk of sexual assault in India.  The next day the respondent refused these matters and recertified.  The letter 6/9 contained several errors in law and amounted to a rule 353 letter of refusal.  It had introduced article 3 on an article 8 assessment.  That set an impossibly high hurdle. 

[10]      The minister had not considered what the most generous, not perverse, immigration judge would do.  She had merely followed her own view.  Counsel then went through all the letters in order and I will take this up later in my opinion.  The petitioner was not saying he was bound to succeed, only that the proper question should be was he bound to fail.  Here there was some prospect of success.  On one side of the balance there were very strong family interests.  That outweighed the State interest in a fair system of immigration control.  The petitioner was only just in breach of the rules.  Issues of “proportionality” would not be determined by “bright line” rules which can never deal with the every eventuality.  Counsel ended by looking again at the facts of Boultif (where the husband was an offender) and comparing them to the facts of this case. 

[11]      In reply Mr McIver advanced a number of structured points.  Firstly he took me to the chronology and the section 94 certifications to be found in numbers 6/7 and 6/9 of process.  These were the letters challenged and on which reduction was sought.  He confirmed that the effect of the certifications was that there was no “in country” appeal. 

[12]      Secondly counsel looked in some detail at the two decision letters pointing out that India is one of the “listed countries”.  The petitioner had only been here for 18 months and “precariousness” depended on his whole presence.  This section under the rules does take full account of persons who are British citizens.  He did not qualify under “private life”, and outside of the rules, family life was considered.  Counsel looked at the shorter letter (6/9).  The risk of violence was mentioned and the prior certification confirmed.  There was no new evidence and no proof of any health issues.  Fertility treatment was irrelevant.  The respondents had a duty to certify unless persuaded that the claim was clearly not unfounded.  Once that condition was met, certification had to follow and would only follow a refusal. 

[13]      What then, counsel asked, did “clearly unfounded” mean.  He took me to R(L) an asylum case involving the former section 115 in the same language.  The process and the tests are to be seen in paragraphs 56 and 57.  In other cases the expression “bound to fail” is to be found.  Here there had to be no legitimate view that the claim will succeed.  If there was any such legitimate view on which an immigration judge may grant the claim then there could be no certification. 

[14]      Thirdly Mr McIver looked at the role of the court.  Was it simply the view of the court or did there have to be traditional judicial review grounds.  In “fresh claims” cases (rule 353) the test is one of traditional judicial review.  The matter has not been settled for what are “certification” cases.  The test ought to be what is reasonable, in traditional judicial review;  and the question posed “was the respondent’s decision reasonable”.  He referred me to AMC at paragraphs 56 to 65.  This claim had been dealt with “within the rules”.  Effect had been given to article 8 and there had been a proportionality assessment.  He referred me to MS, and accepted that the use of “exceptional “had been disapproved in MS India. 

[15]      Fifthly, he turned to the grounds advanced in support of the petition (6/8 of process).  No medical evidence had been produced beyond the statement on page 9.  All of this was properly dealt with in no 6/9 in paragraphs 6 to 8.  Fertility treatment could not be equated with true medical issues.  Counsel referred me to Erimako.  The problem over the mother-in-law had been addressed in 6/9 and 6/7 as was the risks of returning to India.  Where the proper factors were covered by the rules than the rules suffice.  You only go beyond the rules if there are other matters.  Counsel asked me not to follow Mirza or to distinguish it.  European Union rights were in this context not necessarily equated with ECHR rights.  He looked in some detail at Harrison (Jamaica) paragraphs 51 and 63.  Precariousness mattered here.  He could have had no expectation that this visa would be extended.  It was not as simple as two and a half weeks.  He was only here a short time. 

[16]      Mr McIver concluded by saying that the petitioner could have no legitimate expectation of remaining from any of the evidence or documents produced, especially any internal guidance on section 94.  The family life was of little weight due to precariousness.  The letters should stand as all the proper issues had been taken into account under the rules which had been correctly applied.  The respondent’s decision was reasonable, and reduction should be refused.

[17]      I now wish to look at the jurisprudence.

[18]      AK (Sri Lanka) was referred to.  The facts were very different to the present case.  The claimant came to the UK unlawfully in 1992.  There were many unsuccessful claims for asylum, a relatively good assessment from an adjudicator after what was called a “scattergun” application to remain (para 3).  Thereafter there were a number of procedural failures (para 5, 10 and 13).  Her advisor lodged what they considered was a fresh claim raising important medical issues.  She was removed from the UK in 2008 without the Minister considering whether the new material amounted to a “fresh claim”.  Having failed before a single judge the issue for the Court of Appeal was whether a reasonable Secretary of State might have concluded that indeed a fresh claim was advanced.  Having discussed what was meant by further submission the Court of Appeal (paras 20/22) concluded that the minister had not asked herself whether the material was a further submission and she should have appreciated that it was, and accordingly failed to consider rule 353.  The court then looked at the conflicting opinions in an earlier House of Lords case about the meaning of “clearly unfounded” and “no realistic prospect of success” (paras 29/33).  Laws LJ (para 34) regarded the difference as “… so narrow that its practical significance is invisible …”.  Something not clearly unfounded will be a case which has a realistic prospect of success.  Allowing the appeal they held that a reasonable Secretary of State might conclude that the material in the fresh submissions would enjoy more than a fanciful prospect of success before a tribunal on an article 8 appeal (para 35).

[19]      Next in R (L and another), two cases from the Czech Republic.  The claim was for asylum for a Roma family, a mother and son.  It was referred to for what were the tests for a claim that was “clearly unfounded”, under a section which preceded the present section 94.  It had the oddity of procedure being applied before the Act was promulgated against the background of the Czech Republic being a listed state ie one deemed free in general from persecution of minorities by the state or with its acquiescence.  At paragraph 57 a series of tests are proposed for decision makers who are normally executive officers.

[20]      Because of the problem with the date of the statute additional material was heard including an expert witness.  None of this availed and judicial review was refused.  It was held that there was a sufficiency of state protection.  In spite of a terrifying police rape of the mother the claims failed.  She had never reported the crime.

[21]      All of this is of course very extreme and far removed from the facts before me, including a too speedy procedure (absent here).  No issue of article 8 was involved and while paragraphs 43, 46, 74, 88 and 89 give helpful guidance in asylum cases they are not clearly in point in my opinion for the case I have to deal with.  Where the case is of help is in a passage in paragraph 58 by the Master of the Rolls when he said this:

“… If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded.  If that point is reached, the decision-maker cannot conclude otherwise…”

Mr Caskie reduced this “profusion of negatives” (paragraph 59) to a simple binary test and in this he may well be correct.

[22]      There are three recent Inner House cases which I now turn to consider.  They were all issued in April 2015.  First is Mirza which has some similarities to the present case.  The petitioner was a citizen of Pakistan who came to the UK on a visa.  He became an overstayer and having met a UK citizen began to live with her in Glasgow.  She was in employment.  The Minister gave permission and they were married and wished to start a family.  He applied for leave to remain.  It was conceded that he did not qualify under the 2012 Rules.  The respondent found that there were no “insurmountable obstacles” to their married life continuing in Pakistan and leave was refused.  The Minister then considered article 8 and concluded on the facts that there was no good arguable case to allow leave outside the Rules.  The Minister followed the earlier case of MS and applied the antecedent test of “good arguable case” to the questions of whether it should be dealt with outside the Rules.  No test of proportionality was applied and no account was taken of the wife’s rights or her practical situation.  Lord Eassie attached particular importance to this and her right to live in the UK and by so doing virtually forfeit the marriage.  (Paragraphs 16 to 19)  He also attached importance to the questions asked and answered in Sanade.  He went on (paragraph 20) to say that “insurmountable obstacles” (a test under the Rules) was not an appropriate test when assessing proportionality;  nor was the test one of “unjustifiably harsh consequences”.  The issue of “precariousness” was somewhat overruled by the fact of permission to marry.  Judicial review was granted.

[23]      Khan was again a case where the petitioner succeeded because the position of his wife had not been properly considered.  While here on a visa from Pakistan the petitioner met and later married a Scottish woman.  By then he was an overstayer.  His wife was a British citizen and in employment.  An application to remain was refused and a later refusal followed when representations were made.  It was accepted that the husband did not fall within the relevant Rules and that the second refusal was vitiated by a failure to make any proportionality assessment.  The matter then depended on whether that failure was material given that the marriage was “precarious” and there were no exceptional circumstances to engage article 8.  Lord Eassie (paragraphs 11 and 12) did not follow the reasoning of the European jurisprudence in the leading Dutch case about precariousness, and went on to say that exceptional circumstances was not a legal condition.  He went on as follows (paragraph 11):

“… we consider that counsel for the petitioner was well founded in his submissions that one simply could not say that anyone properly carrying out the proportionality assessment required by Article 8 … in this case would inevitably conclude that the interference with the private and family life of both the petitioner and his wife was proportionate …”

As the correct issue had not been addressed judicial review could not be refused on the basis that the decision would have been the same had the discretion been addressed.  There was more in the facts than merely the marriage.

[24]      This case is binding on me and I have to follow it.  I do observe that I am unsure if the same view is held in England on the point of precariousness (see the recent Court of Appeal case of Agyarko etc 9 June 2015 Time Law Reports).

[25]      The third case is Ashiq where Lady Smith gave the opinion of the court.  The facts were quite different from the case before me and comments were made on a number of general legal issues.  The petitioner was here illegally and had married a woman who lived in the UK.  She was not a British citizen and remained a Pakistani national, though she had been here for 30 years.  She spoke Punjabi:  the parties had no children.  The petitioner’s claim for asylum had been rejected on six occasions.  The case had been through the tribunal system and it is of importance to note that the petitioner’s wife was quite happy to return to Pakistan.  That position was retracted in a later application.  In refusing the application again and due to a procedural complexity two letters were issued.  A Lord Ordinary granted judicial review as there had been no separate article 8 consideration outside the rules.  She did not, however, consider whether that error was material.  The Inner House did, however, address the question of materiality finding as they did that the Minister’s alleged failure was immaterial.  Some twenty separate points were found against the petitioner including precariousness.  On its facts it is quite different from the case I have to deal with.

[26]      Harrison (Jamaica) and another, was referred to though I am not sure whether the cases are truly in point for present purposes.  In the first place it concerned children, a feature absent here.  Secondly, on the facts it concerned very serious criminal behaviour on behalf of both appellants and thirdly what was sought was a reference to the European Court because the current state of European law on the Zambrano doctrine was not acte clair.  That the Court of Appeal refused to do, after a very lengthy and comprehensive analysis of the doctrine and its developments since 2011 (see paragraph 70).  With that hurdle out of the way, neither appellant pursued his article 8 case with any enthusiasm and for good reason (paragraph 71).  Neither appellant was lawfully present.  Precariousness was present to a degree and in cases of serious crime the welfare of children was not decisive.  In both cases the lower courts had conducted proper proportionality balances.  Unsurprisingly on the extreme facts the Court of Appeal refused to reassess that balance.  That was not their function.

[27]      Before me only paragraphs 51 and 63 were mentioned.  Fifty one deals only with article 8 on the facts of Harrison (totally different from here).  Sixty three raises the issue of being “compelled” to leave EU territory.  That is not suggested here.  I express no view as to what was discussed in paragraph 67 about quality of life.  I think that is speculation and the point may remain open for a suitable case, not this one.

[28]      Boultif is a well‑known authority and again it concerned criminal behaviour.  The applicant was an Algerian national married to a Swiss citizen.  He was convicted of firearms offences and of a serious assault and robbery.  Having been sentenced to imprisonment his residence permit was not renewed.  He was ordered, on release, to leave the country.  His wife complained of being expected to follow him to Algeria.  The matter was argued as a breach of article 8.  Having balanced all the interests the court found a breach of the article.  the relevant tests appear in paragraph 48.  The concurring opinions agree with this and the three judges pointed out the relatively few cases where a breach of article 8 had been found.  The court in Boultif took a very charitable view of the offences and the apparent rehabilitation.

[29]      The Scottish case of AMC again involved crime.  Here the petitioner was the estranged spouse of a UK citizen.  She had lived here for over 20 years.  At the age of 42 she was convicted of a drugs offence and sent to prison.  The Minister rejected her claim that to deport her was a breach of article 8 and certified it as “clearly unfounded”.  The Lord Ordinary, applying a test of “anxious scrutiny” both by a hypothetical adjudicator, and by the Minister found that the correct question had not been asked in the case before him.  (See paragraphs 13 and 65).

[30]      I look now at the productions in the case bearing in mind that this petitioner has never appeared before any tribunal and so I have no findings made on evidence or views about credibility, adverse or favourable.  Usually they would be taken pro veritate (see 6/10 2.2).  On 8 September 2014 (no 6/3) an application for leave to remain as a spouse was lodged.  This is the normal lengthy document and contains inter alia details of Mrs Lal’s employment, bank statements and utility bills.  That application met with a refusal on 1 October 2014 (no 6/4 3 pages).  The claim was said to fail under the rules and in particular rule ex 1(b), it being said by the Minister that there was no insurmountable obstacle to the parties’ life continuing in India.  For present purposes it is not necessary to set out the rules as the argument before me took a quite different course.  The decision challenged in the petition makes clear that Mr Caskie only sought reduction of a later document.  The refusal went on to consider article 8 within the rules and again found them inapplicable (rule 276 ADE(1)(vi)).  It was also refused more generally under article 8 in that there was nothing exceptional about the petitioner’s case, that they could continue their relationship from overseas or the wife could go to India and work there.

[31]      Then on 23 October 2014 (no 6/5) solicitors challenged that decision.  I refer to the letter.  It is in very general terms but does make clear that there has been a failure to take proper account of the family life and in particular the disabled mother‑in‑law.

[32]      Removal directions were issued (6/1 second page) and contemporaneously (no 6/7) a refusal decision was sent on 24 October 2014 which seems to be based on the first application (no 6/3).  It contains some 47 paragraphs and refuses the application substantially for the same reasons as in 6/4 but with more detail.  It is this document which certifies the claim as clearly unfounded under section 94(2) and (3) of the Nationality, Immigration and Asylum Act 2002.  On the same date a letter of reply was sent to the solicitor’s letter of 23 October 2014.  This repeats the refusal both under the rules and article 8 outwith the rules.  This letter appears to treat the solicitor’s letter of the 23 as a pre‑action protocol letter (no 6/6).

[33]      Then on 28 October 2014 (no 6/8) the solicitors wrote again seeking further leave to remain under the rules and article 8.  This letter contains two important documents.  The first is a precognition from Mrs Lal.  Paragraphs 5 to 8 of that highlight in detail why it is necessary for her to remain in Scotland to care for her mother.  There is next mention of a health problem suffered by Mrs Lal (paragraph 10) and her inability to speak any language of India.  She also claims to fear for her safety in India.  The second document is a UK Government advice about safety and travel in India especially for females.  To that letter no 6/9 was sent in reply on 29 October 2014 and it is that which was the main focus of the argument before me.  It contains fifteen paragraphs.  It is said (paragraph 5) that no new evidence has been provided in spite of the writer earlier acknowledging the statement and the article (paragraph 2).  In paragraph 7 the writer refers to article 3 which has not been raised by the petitioner.  The letter goes on to consider then reject the new material as a “fresh claim” under paragraph 353 of the rules and concludes that it has “no realistic prospect of success” (paragraphs 10 and 13).  Nowhere does it appear why the claim based on the mother‑in‑law’s needs and the risks in India to women have no realistic prospect of success.

[34]      In fairness to the respondent these matters have been raised late but nonetheless the petitioner may well be justified in thinking that he was entitled to have reasons, and to have a proportionality exercise carried out not only on his article 8 rights but also those of his wife.  The argument made against the respondent is that none of this has taken place.

[35]      My decision in this case is to grant judicial review.  The amended petition does not make it very clear which letter is to be reduced and in my opinion to give proper effect to the whole argument before me the order should be for reduction of the decisions contained in the letter of 24 October 2014 (no 6/7) and that of 29 October 2014 (no 6/9).  I can give my reasons briefly for this.

[36]      On the authorities quoted to me, especially the three recent cases from the Inner House, it is clear that the respondent has not conducted a fair proportionate exercise over article 8 rights outside the rules.  In particular she has failed to attach enough importance to the rights of the petitioner’s spouse which on these recent authorities she must do.  In detail she has not properly considered the close relationship the spouse has to have with her own disabled mother.  Were she compelled to go to India that important tie would be broken.  If she does not go the new marriage would be artificial especially as the parties wish children.  That leads to the next point.

[37]      Her wish to have treatment for infertility is of course elective and not due to a threat to life.  The case of Erimako makes clear that in itself such treatment is not a compelling factor.  However, in my opinion in paragraphs 6 and 7 of no 6/9 the respondent has misdirected herself in law by looking at the matter under article 3.  That has never been raised by the petitioner;  was not mentioned in no 6/7 and formed no part of 6/8.  In my opinion it discloses an error in law and amounts to taking into account irrelevant considerations.  It thus does not comply with the Wednesbury rules.  For the same reasons the respondent has failed to take account of two relevant considerations namely the responsibilities for the disabled mother and the risk to females in India.  These are mentioned in paragraph 4 of no 6/9 but are simply ignored.  That too I regard as an error in law.

[38]      Also I do not think that the correct test to apply is whether there is a “realistic prospect of success” under the rules.  What has been decided is that the claim is “clearly unfounded”, and the certification was made on that basis.  Looking again to the leading case of AK (Sri Lanka) it may be that there is a distinction between these two tests but no real difference.  This petitioner has had his case decided and adversely certified on papers alone.  From the way the decision has been taken in my view it cannot be said on any reasonable view that the case would be bound to fail before an immigration judge.

[39]      I should add that I do not attach much weight to the precariousness argument in view of what was said in Mirza.  Finally in view of the way the decision has been taken I cannot refuse the remedy sought on the basis that the decision would have been the same if the proper issues had been addressed.  For the same reason it is not necessary to express any concluded opinion on the purported decision taken within the rules.  For completeness I should add two things.  I do not think it is necessary to deal with the EU argument which was set out at great length in Harrison and where the law in Zambrano was analysed in some detail.  There are no children here and I did not get any impression from the parties that the case really turned on what was said in Harrison on that European issue.

[40]      Secondly it is a factor that there are no issues of crime here as there were in Harrison, Boultif, and AMC.  That is a factor in favour of the petitioner.

[41]      The interlocutor will accordingly grant reduction of nos 6/7 and 6/9 of process and expenses will be reserved to a later date for hearing.