Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 155

 

P89/15

OPINION OF LADY STACEY

In the cause

STEPHEN NASHO ALIBINU

Petitioner;

for

Judicial Review of a decision refusing the petitioner further leave to remain

 

Petitioner:  Lindsay QC, Winter;  Drummond Miller LLP

Respondent:  Pirie;  Office of the Advocate General

13 November 2015

[1]        The petitioner is a national of Zimbabwe.  He seeks judicial review of a decision of the respondent dated 27 March 2015 refusing to consider an application made by him as a fresh human rights claim.

[2]        The petitioner has been in the UK since 2001, having entered on a visitor’s visa. His date of birth is 20 November 1968.  On 6 June 2014 his solicitors submitted an application form seeking leave to remain in the UK under Appendix F M of the Immigration Rules (HC194) and article 8 ECHR.  The application was based on the petitioner being in a genuine and subsisting relationship with his partner and having contact with his children and grandchildren with whom he claimed to be in close relationships.  He completed both the application form and a “paper apart”.  In the paper apart the petitioner made reference to paragraph 353 of the Immigration Rules and to article 8 ECHR.

[3]        The petitioner claimed that he was in an ongoing relationship with Ms N whom he had met in 2011 and with whom he had been living in Glasgow since 2013.  He stated that she had been diagnosed with breast cancer in 2013 and had been subject to treatment for that condition.  She required to take the drug tamoxifen.  He had supported her when attending hospital for her treatment.  She had collapsed at work and he had taken care of her.  He required to continue to give her support.  He believed that she would not be able to get access to the drug that she needed were she to live in Zimbabwe.  Ms N is also a national of Zimbabwe.  She has discretionary leave to remain in the United Kingdom and has no reason to think that that leave will not be extended.  She is employed as an assistant in a care home and supports him from her earnings.  The petitioner lodged information about Zimbabwe from which he claimed that the medical care available in Zimbabwe was poor and that the necessary drugs would not be available for Ms N.  Further, he claimed that the economic situation in Zimbabwe was very poor, with high unemployment, and that there was no reason to think that he would be able to support himself and to continue contact with his family in the UK were he to be removed to Zimbabwe.

[4]        The petitioner claimed that he had three children and three grandchildren.  Two of his children were grown up and lived with their own families in England.  His youngest child, C, date of birth 30 October 1998, lived with her mother, the petitioner’s ex-wife, in Nottingham.  The petitioner stated that he had access to C, by agreement with his ex-wife, going to Nottingham to visit her and having her visit him.  He kept in touch with all of his children and grandchildren.

[5]        The petitioner stated that he had no relatives left in Zimbabwe.  All but one of his siblings had died and the one remaining living had moved to South Africa.

[6]        In response to a request by the respondent, the petitioner supplied further information to vouch the claims that he made in his application form.  That included certificates of birth for his children and grandchildren; letters from his children and ex-wife confirming that he kept in touch with them and that they would miss contact with him were he to be removed from the UK; a letter from Ms N’s GP confirming that she had been diagnosed with cancer and a letter from his sister stating that she had moved to South Africa as she had no relations left in Zimbabwe.

[7]        The respondent set out the petitioner’s immigration history in the letter of 27 March 2015.  In February 2007 he was arrested on deception charges.  (This was accepted by the petitioner who stated in his petition that he was convicted of deception by possessing or using a false instrument for which he was sentenced to a ten month custodial sentence on 29 March 2007.)  He claimed asylum on 25 April 2007.  That application was refused on 20 November 2007.  An appeal against the decision was dismissed on 6 February 2008 and further application for appeal was refused.  Rights of appeal became exhausted on 30 March 2009.  On 16 October 2009 the petitioner made further submissions on article 8 grounds as his wife and daughter had been granted refugee status and thus leave to remain in the UK.  The submissions were rebutted on 15 March 2010.

[8]        On 6 June 2014 the petitioner made an application on the basis of his relationship with Ms N, and in the form gave information about his parental relationship with his daughter C and his relationship with his other elder children and his grandchildren. .  That application was refused by the respondent by letter dated 4 September 2014 and, following a pre-action protocol letter the current petition was raised.  The respondent issued a further letter dated 27 March 2015 which bears to include consideration of whether the submissions amounted to a fresh claim on human rights grounds.  Paragraph 353 of the Immigration Rules is as follows:–

“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraphs 333 C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any fresh 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.

This paragraph does not apply to claims made overseas.”

 

The respondent by the letter of 4 September 2014 rejected the further submissions and by the letter of 27 March 2015 considered whether or not they amounted to a fresh claim.  The decision maker directed herself that the question was not whether the Secretary of State considered the claim to be a good one, but rather whether there was a realistic prospect of an immigration judge, exercising anxious scrutiny of the new material, finding in favour of the applicant.  She stated that the test may be described as whether or not there is not much more than a fanciful prospect of success.  

[9]        The rules applying to the petitioner are contained in paragraphs D-LTRP.1.3, D-LTRPT1.3 and 276 CE with reference to R-LTRP1.1 (d) R-LTRPT.1.1 (d) and 276ADE (1) (iii) –(vi) of the Immigration Rules.

[10]      The decision maker found that the material in the appeal determination of 6 February 2008 and the decision on a previous submission of 15 March 2010 together with the current material did not create a realistic prospect of success.  She noted that the asylum claim which was based on political activity and sexuality was dismissed by an immigration judge because he did not believe the petitioner, finding that he did not establish that he had any sort of difficulties in Zimbabwe apart from those that may be experienced by the population at large.  She directed herself that while the current submissions are based on different grounds an immigration judge could have regard to previous findings of lack of credibility.

[11]      On page 3 of the letter the decision maker states that she is of the view that the petitioner is not able to meet the suitability requirements for leave to remain, because of his disregard for immigration law as shown by his seeking to evade immigration control, the lodging of an entirely disbelieved asylum application and his absconding from control, together with conflicting information provided regarding the personal details of his family members.  She states however that she recognises that an immigration judge may take a different view.  The case before me proceeded on the basis that the petitioner may be able to fulfil the suitability requirements.

[12]      The relationship with Ms N is considered under the rules and she is found not to be a qualified person having only limited leave to remain in this country.  The decision maker therefore finds that there was no realistic prospect of an immigration judge finding that the petitioner is able to meet the requirements for leave to remain as a partner.

[13]      The decision maker then considered the application to remain on the basis of the petitioner’s parental relationship with C.  She accepted that C is under 18, is settled in the UK and has been resident in the UK for more than seven years.  She then considered the requirement of E –LT RPT 2.4 as follows: –

“(a) the applicant must provide evidence that they have either –

(i)  sole parental responsibility for the child or that the child normally lives with them; or

(ii) access rights to the child; and

(b) the applicant must provide evidence that they are taking, and intend to continue to take, an active role in the child’s upbringing.”

She found that the petitioner had not produced sufficient evidence to show that he had access rights to his daughter nor that he took and intended to continue to take an active role in her upbringing.  She stated

“You were asked to provide evidence of your ongoing relationship with [C] on 21 August 2014 and to date you have not produced this evidence.  It is not therefore accepted that you have a parental relationship with C that brings you within the ambit of Appendix F M and you are therefore are unable to meet the requirements set out above.  For the same reasons paragraph EX1 (A) does not apply.  There is no realistic prospect of an immigration judge finding that you are able to meet the rules for leave to remain as a parent.”

 

[14]      The decision maker stated that consideration of C’s best interests had been incorporated into the application of the Immigration Rules.  She noted that the child had been settled in the UK with her mother and had lived apart from the petitioner for the majority of her life.  She noted that she could continue to maintain contact with her father using modern methods of communication.  It was accepted that that would inevitably alter the nature of the relationship between father and daughter but it was not accepted that the petitioner enjoyed family life with his daughter and therefore not accepted that his return to Zimbabwe would have a particularly detrimental impact on her best interests.

[15]      The position of the petitioner’s grandchildren was considered.  They live in England with their parents. The decision maker stated that there was a lack of any evidence other than letters from their parents of any links of dependence between the petitioner and his grandchildren.  She accepted that the petitioner maintained contact at a distance and found that it was not unusual for such extended family relationships to be conducted between different continents and countries.  She did not find that removal of the petitioner would infringe the best interests of the grandchildren to any real degree.  She decided that there was no realistic prospect of an immigration judge coming to a different decision.

[16]      Finally, on the Immigration Rules, the decision maker found as stated in the letter of 4 September that the petitioner did not fulfil the requirements of paragraph 276 ADE of the rules.  The sub paragraph which might apply to the petitioner is (vi), which is in the following terms: –

“subject to subparagraph (2), [the petitioner] is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.”

 

The decision maker found that there were no significant obstacles to the petitioner’s integration into Zimbabwe because he had spent the majority of his life living the prior to entry to the UK.  She found that there was no realistic prospect of an immigration judge thinking otherwise.

[17]      The decision maker then considered whether there was a realistic prospect of an immigration judge finding that the petitioner should be granted leave to remain outside of the Immigration Rules.  She proceeded on the basis that an immigration judge might find that the petitioner had a genuine relationship with Ms N, had two children over the age of 18, a daughter under 18 and three grandchildren all in the UK.

[18]      She regarded the economic situation in Zimbabwe as poor, though stabilising.  She stated that levels of unemployment are high but the true figure is impossible to gauge as countless Zimbabweans make a living in the informal sector.  She found that both the petitioner and his partner have transferable skills and that there is no reason to believe that they would be unable to support themselves in Zimbabwe. 

[19]      Turning her attention to the medical condition of the petitioner’s partner she noted that Ms N states that she requires medication for her condition, breast cancer.  She noted that

“[Ms N] seems to be in receipt of post-operative medical care from the Beatson clinic in Glasgow, [and] she states that she requires medication for her condition.  However it is noted that there is no evidence to support this nor any prognosis for her condition.”

 

The decision maker found that the relevant drug is available worldwide and that there is no reason to believe that a generic alternative would not be available in Zimbabwe.  She found that public medical facilities in Zimbabwe are poorly funded and staffed; that there are well-run private healthcare facilities in Harare and Bulawayo which are not free; however she found no reason to believe that the petitioner would not be able to earn sufficient funds to pay for any treatment needed.  The decision maker did not accept that it would be unduly harsh to expect Ms N who is a Zimbabwean national to relocate with the petitioner in order to continue any family life they may have together.

[20]      The petitioner’s children are dealt with as follows: –

“It has not been accepted that you have any links of dependence to your elder children and no evidence has been presented to suggest that your return to Zimbabwe would have a detrimental impact on them or their children.  It has not been accepted that you exercise a parental role in C’s life.  You can maintain contact with these people from overseas.”

 

[21]      Finally, in the part of the letter dealing with the decision under paragraph 353, the decision maker states

“It is not accepted that your case has such peculiar features as to merit a grant of leave outside of the immigration rules and for the same reasons it is not accepted that there is a realistic prospect of an immigration judge thinking otherwise.”

 

 

Submissions for the petitioner

[22]      Counsel for the petitioner challenged the letter of 27 March 2015 by which the respondent gave her decision that the claim had no reasonable prospects of success before an immigration judge and therefore did not meet the definition of a fresh claim.  The motion for the petitioner was to sustain the first plea in law and reduce the letter of 27 March 2015.

[23]      He accepted that the decision maker has set out the correct test but he argued that she had failed to apply it properly.  He argued that the petitioner had a reasonable chance of persuading an immigration judge of one or other, or both of two things: –

1.  the petitioner should be allowed to remain because of his relationship daughter C, within the Immigration Rules or

2.  the respondent erred in failing to hold that refusal of leave to remain amounted to disproportionate interference in the family life of the petitioner and his family, including his partner, and his three children and his grandchildren and therefore he should be allowed to remain out with the rules.

[24]      Counsel accepted that the respondent was correct to state that a previous finding of lack of credibility could be taken into account by the respondent when considering a fresh claim.  In this case however, the matter on which the claimant had been found to be incredible, that of his right to asylum, was not the same the matter on which he now applied which was that of his family life.  Counsel referred to the case of Ibrahim v Secretary of State [2015] CSOH 71 which applies to a claim for asylum.  Nevertheless, the exercise that the court requires to carry out is conveniently set out with reference to several cases thus:-

“The correct questions for the court to ask itself are accordingly: –

(i)  has the Secretary of State asked himself the correct question? – That is, whether there was a realistic chance that an immigration judge, applying the rule of anxious scrutiny, will accept that the petitioner will be exposed to a real risk of persecution on return; and (ii)  in addressing that question has the Secretary of State satisfy the requirement of anxious scrutiny?  In approaching ‘anxious scrutiny’, the following propositions apply namely: (i)  the Secretary of State’s decision will be irrational if it is not taken on the basis of anxious scrutiny; (ii)  anxious scrutiny means that the decision letter must demonstrate no material factor that could conceivably regarded as favourable to the petitioner has been left out of account in the review of the evidence; and (iii)  anxious scrutiny does not mean that the Secretary of State must show undue credulity to the petitioner’s account.  With regard to the approach to whether the further submissions amount to a fresh claim and in particular to the ‘realistic prospect of success’ test set out in rule 353, Laws LJ in AK (Sri Lanka), supra at paragraph 34 stated the position thus: – ‘A case which is no realistic prospect of success… Is a case with no more than a fanciful prospect of success ‘realistic prospect of success’ means the more than a fanciful such prospect.”

 

Counsel argued that the hurdle was low.  Any material factor which a new immigration judge might find to be in favour of the claim made by the petitioner had to be taken into account.  The petitioner has no relatives left in Zimbabwe, as shown by a letter in the papers from his only remaining sister stating she has gone to South Africa.  His partner, Ms N is Zimbabwean but has discretionary leave to remain in the UK.  She has applied for that leave to be extended and has no reason to think that it will be refused.  While it may be said that her status is to some extent precarious, and the status of the petitioner is more precarious than that of his partner, such status does not function as “a road block” to a claim under family life.  Ms N is recovering from cancer and she gets the drug tamoxifen.  It is important to her to get that as it reduces the chances of a recurrence of the cancer.  She is in employment as a care worker and she has her own tenancy.  She supports the petitioner financially, and by giving him accommodation.  The petitioner helps her with her treatment for cancer.  It is wrong to say there is no evidence of her condition, as there is a statement from her, from the petitioner, and from her GP.  There are also letters from friends referring to “her illness”.

[25]      The petitioner’s daughter C is 16.  She has refugee status.  She has the right to remain in the United Kingdom. The petitioner’s position is that they have a strong relationship and that he travels to Nottingham to see her and she comes to Scotland to see him.  His ex-wife refers to his seeing her twice a month and being available for important family events.  C refers to her father giving her advice.  The respondent found that the petitioner did not show he had a family life with C.  The question is what would another immigration judge make of the evidence?

[26]      Counsel argued that the two adult children and their children were also relevant.  They are British subjects.  There is correspondence to the effect that they all keep in touch and that the petitioner plays a part in his adult children’s lives, and in the lives of his grandchildren.  There is evidence from them, not just from the petitioner.

[27]      Counsel addressed the reasons for the decision.  The rules were amended to bring in consideration of article 8 into the decision making but it is recognised that no code could extend to all circumstances so one considers the rules first, and then if the application fails under the rules one still looks outside the rules; it is a two stage process. 

[28]      Counsel referred to the case of Ashiq v Secretary of State [2015] CSIH 31 which sets out the position concerning this type of case.  The new Immigration Rules came into force on 9 July 2012: Statement of Changes (HC 194).  They provide for the insertion of Appendix F M which concerns “family members”.  The general intention is to provide a route for those seeking to enter or remain in the UK on the basis of their family life with a person who is a British citizen, is settled in the UK, or is in the UK with limited leave as a refugee or person granted humanitarian protection.  The rules are extensive and detailed and attempt to cover a wide range of circumstances but leave scope for individual assessment.  Counsel relied on paragraphs 4 and 5 in the following terms:–

“(4) The rules cannot however, be construed as providing a complete code for all article 8 claims: M S v Secretary of State [2013] CSIH 52; MF (Nigeria) v Secretary of State [2014] 1W LR 544.  Facts and circumstances are bound to arise from time to time which were not expressly foreseen by the drafters of the rules yet are such as might, on an application of article 8, require the grant of a right to remain.  The rules to not dispense with the duty, under primary legislation (the Human Rights Act), of those who make decisions about family life claims to comply with the provisions of the Convention.  Nor could they properly have done so; their exposure to the democratic process, as explained in MF was limited.  Thus, if a family life claim arises and it does not qualify under the rules, the Secretary of State must nonetheless consider it, in implementation of her statutory duty.

 

(5)  But how is the decision maker to do that and to show that, when reaching his decision, he recognised and understood his article 8 duties it?  How is he to show that he did not confine himself to an application of the rules?  The answer has been discussed in a number of recent cases (Izuazu (article 8 – new rules) [2013] UK UT; R (Nagre) v Secretary [2013] EW HC 720 (Admin); M S v Secretary of State for the Department; Singh v Secretary of State, Khalid v Secretary of State [2015] EWCA Civ 74).  These discussions refer to there being two stages – first consideration of whether the applicant can bring himself within the new rules and then, secondly, whether, considering article 8 separately from the rules leave to remain should be granted.  Equally however as the discussions have progressed, it has been made clear that it is not a formulaic approach that is required.  The point is rather one of substance.  The decision maker needs to show that the application is being considered by reference to the rules and that this is also being considered simply by reference to article 8 but the need is for him to do that, not to do it in a particular way.  No doubt consideration by reference to the rules will normally take place first.  If it is not decided that leave to remain to be granted on that basis, the decision maker will then need to address article 8.  It may be that, at that stage, the decision maker concludes that any family or private life issues raised have in fact already been fully addressed at the first stage in which case, adopting the language of Underhill LJ in Singh v Secretary of State at paragraph 66 ‘obviously there is no need to go through it all again’ and all that will be necessary as to the decision maker ‘to say so’.  There will be no need to conduct a full separate examination of the facts and application of article 8 outside the rules if all the relevant issues have already been addressed in the consideration under the rules.”

 

[29]      Counsel for the respondent also referred to Ashiq.  Both counsel accepted that the correct approach for the current case is set out in that case. The controversy between them was whether the respondent had taken the correct approach, and had shown by the letter that she had done so.

[30]      Counsel for the petitioner argued that there were two errors, one when considering the position within the rules and one outwith the rules.  It was correct, within the rules to say that Ms N is not a partner as defined.  So far as the rules are concerned the error is in connection with the relationship with C.  The respondent stated correctly that the requirements are set out at E – L T R P T 2 .2, 2.3 and 2.4.  The respondent accepted that C is under 18 and settled in the U K and has been resident there for more than seven years.  Rule 2.4 is in the following terms:–

“(a)  the applicant must provide evidence that they have either – (i) sole parental responsibility for the child, or that the child normally lives with them; or (ii) access rights to the child; and

(b) the applicant must provide evidence that they are taking and intend to continue to take an active role in the child’s upbringing.”

 

The respondent found that the petitioner had not produced a sufficient evidence to show that he had access rights nor that he took and intended to continue to take an active role in the C’s upbringing.  The respondent found that there was no realistic prospect of an immigration judge making a different finding.

[31]      In the answers to the petition and during the first day of argument, the respondent’s position was that as the petitioner had access to his daughter by arrangement with his ex-wife, he did not have access rights.  Counsel argued that it was necessary to have a court order.  In the time between the two hearings, which were separated by several days, counsel’s instructions changed and by the second hearing he was prepared to accept that access by arrangement between divorced or estranged spouses may amount to access rights in terms of the rules.  He was prepared, for the purposes of this case, to concede the point.  He brought to my attention the upper tribunal case of J A (meaning of “access rights”) India (2015) UKUT 00 225 (IAC).  In that case the Upper Tribunal found that a parent may have “access rights” with no court order at all, for example by agreement between parents.  It respectfully seems to me that the Upper Tribunal is correct in that and that the respondent correctly made the concession. 

[32]      Counsel for the respondent continued to argue, however, that the second part of the regulation was not fulfilled, as he argued that the petitioner had not shown that he took an active role in C’s upbringing and intended to continue so to do. He developed that argument by considering and criticising the evidence produced by the petitioner.

[33]      Counsel for the petitioner argued that the petitioner had filled out the form required by the respondent and had stated he visits his daughter in in Nottingham and that she comes for residential access to him during school holidays.  At 6/3 there is a statement from the petitioner in which he states that he has a strong relationship with his daughter and that he visits her often.  Ms N give a statement to the effect that she knows the petitioner’s family very well and that they spend time together on special occasions as a family.  The petitioner’s daughter wrote a letter, produced within the papers, dated 10 April 2014 in the following terms: –

“To whom it may concern

I am writing this to confirm that I am the youngest daughter of [the petitioner].  I love my dad so much and I am very close to him.  Removing him from this country will break my heart because I do not want to live without him.  He gives me so many advices as a father.  I do not think I would even do well at school knowing that my father has been removed to a country with his family is not there. 

Yours sincerely”

 

[34]      There is also a letter from the petitioner’s ex-wife, in which she states the following: –

“… I am writing to confirm that he is actively in contact with [C].  He visits [C] residing at the above address almost twice a month.  Stephen and make telephone calls to [C] and also have always been available for special occasions like bank holidays, school half term, Xmas and also visits her on her birthdays.  Stephen contributes and help with his daughter though it is difficult for him.  I will support him on any help so that the Home Office may grant him with the right to family article 8.”

 

[35]      Counsel submitted that the decision maker should have appreciated that the immigration judge hearing this case would hear evidence from the people involved, that is the ex-wife and the daughter, about C’s upbringing.  As there was also evidence from the petitioner’s older children that he kept in touch with them, counsel argued that the evidence could show a consistent picture of a family man.  He said that the letters from the family were genuine spontaneous letters and were not dictated precognitions.  While it may be argued by the respondent that of the terms of the letter from C were vague, it was a letter from a teenage girl and it made clear that she regarded herself as having a close relationship with her father and that she valued his advice.

[36]      Counsel then drew my attention to section 117B of the Nationality Immigration and Asylum Act 2002, which sets out the matters that must be considered by a court or tribunal which is required to determine whether the decision made under the Immigration Acts breaches a person’s right to respect for private and family life under article 8.  He argued that that the petitioner fulfils the requirements of subsection (6) which is in the following terms: –

“(6) In the case of a person who is not liable to deportation, the public interest is not require the person’s removal where –

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom.”

 

[37]      Counsel argued that section 117 B would have to be applied by an immigration judge and therefore its terms should have been in the mind of the decision maker.  If counsel was correct in arguing that an immigration judge might decide that there was a genuine and subsisting parental relationship, then the immigration judge would go on to decide that it would not be in the public interest to require the removal of the petitioner.

[38]      Counsel then turned to the consideration outwith the rules.  There was more than a fanciful prospect that the immigration judge would hold that there was a breach of article 8.  He referred to the case of the Principal Reporter v K 2011 (UKSC) 91 which concerns the rights of unmarried fathers.  While the case is concerned with the position of such a person in relation to the children’s hearing system within Scotland, counsel argued that the Supreme Court had given a decision which is binding in the current case.  He referred to the speech of Lady Hale at paragraph 36 in the following terms: –

“First, therefore, it must be established that father and child have a family life together.  The Strasbourg Court has consistently expressed the view that the natural connection between mother and child at birth amounts to family life, which subsequent events could only break in exceptional circumstances… Fathers will normally have family life with the children if they are married to living with the mother and child… But cohabitation is not essential; it will depend upon the relationship established and the degree of commitment shown.  The principles were summed up like this in Lebbink v Netherlands:

36.  Although, as a rule, cohabitation may be a requirement for such a relationship, exceptionally other factors may also serve to demonstrate that the relationship has sufficient constancy to create de facto ‘family ties’… The existence or nonexistence of ‘family life’ for the purposes of article 8 is essentially a question of fact depending upon the real existence and practice of close personal ties… where it concerns a potential relationship which could develop between a child born out of wedlock and his natural father, relevant factors include the nature of the relationship between the natural parents and a demonstrable interest in and commitment by the father to the child both before and after its birth…”

 

[39]      Counsel argued that cohabitation with a child is not essential for family life.  In my opinion counsel is well founded in his argument.  That is recognised in the rules, as the rules refer to a parent who has access to the child and so by definition does not live with the child. The rules recognise that such a person, provided he shows active involvement with the upbringing of the child and an intention to continue that involvement, may have family life with the child.

[40]      The decision maker stated that the petitioner had not produced sufficient evidence of his ongoing relationship with C to satisfy the requirements of the rules.  The form which the petitioner completed states that the evidence required is as follows:-

“Evidence of where your child normally lives and that you play an active role in their upbringing.  This can include:-

• Correspondence addressed to the child
• Doctor’s letters stating the child’s registered address
• School/nursery letter)s) stating the child’s registered address

If you have access rights to your child a court document issued by the courts showing your access rights; and/or evidence from your former partner that you have access rights.

Evidence of your parental responsibility for your child.”

 

The respondent wrote to the petitioner on 21 August 2014 acknowledging receipt of his application, on the form referred to above, and requesting in respect of C

“If you do not reside with your child [C] then please provide documentary evidence to confirm that you have contact with your child.  This should be on official headed paper and be from your child’s school, nursery, health visitor GP or Local Authority.  The letter should confirm what contact you have with your child, for example whether you have attended appointments with them and whether you are listed as one of their emergency contacts.”

 

[41]      In response the agents for the petitioner sent train tickets used for the purpose of visiting C.  Counsel for the petitioner argued that the respondent was entitled to list documents which could be produced, but if they did not fit the facts of the case then the respondent could not infer that no family life had been shown to exist.  He emphasised that the petitioner had not attempted to gild the lily and that the statements produced from his family were spontaneous.  He argued that it was irrational on the part of the respondent to say that because the petitioner failed to produce letters on headed notepaper, he had no credibility about family life.  He argued that an immigration judge might accept the evidence of the petitioner, his ex-wife and C to the effect that the petitioner and C visited each other.

[42]      Counsel argued that C’s best interests were a matter which required more consideration than had been given in the letter of 27 March 2015.  The decision is not that there is family life, but that it is proportionate to interfere with it in order to keep immigration control; rather the decision is that there is no family life.  Counsel argued that in light of the case of Principal Reporter v K, this is an error of law.  The decision maker should have found that family life was established and then gone on to consider whether refusal would be proportionate in light of that family life.  Further, counsel argued that the decision maker had decided that it was “not accepted that [removal] would be detrimental to C’s best interests”.  He argued that was an error.  The decision maker should have decided what was in the best interests of C, and then looked at the legitimate aim pursued by refusal of leave, and then consider if removal achieves that aim, whether it is the least intrusive action and is proportionate in relation to aim.  Counsel referred to Zoumbas v Secretary of State for the Home Department 2014 SC (UKSC) 75 at 78 where Lord Hodge stated:-

“…(1) The best interests of the child are an integral part of the proportionality assessment under Art 8 ECHR; (2) In making that assessment, the best interests of the child must be a primary consideration, although not always the only primary consideration; and the child’s best interest do not of themselves have the status of the paramount consideration; (3) Although the best interests of the child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant; (4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child may be undervalued when other important considerations were in place; (5) It is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations; (6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an Art 8 assessment; and (7) A child must not be blamed for matters of which hears she is not responsible, such as the conduct of a parent.”

 

[43]      Counsel argued that the same error had been made in connection with the grandchildren.  Firstly, it was said that there was a lack of evidence other than from the parents.  That that did not make sense because these were young children and so one would expect the evidence to come from their parents.  In any event, no proper consideration had been given to the best interests of the grandchildren before considering whether or not it was proportionate, in light of those best interests, to refuse leave.

[44]      Counsel then referred to the case of Khan v Advocate General [2015] CSIH 29 as authority for the proposition that even if the petitioner’s status is precarious at the time of entering into a relationship, there is no requirement to find exceptional circumstances before any question of an infringement of article 8 ECHR may arise.  He referred to the case of Mirza v The Secretary of State [2015] CSIH 28 where at paragraph 21 the court stated that the issue is whether the interference with private and family life could be justified by the respondent as proportionate to some legitimate objective.  The four stage nature of the exercise as summarised by Lord Reed in the case of Bank Mellat v H M Treasury (2014) to A C 700 is set out by the court. Counsel argued that the decision maker had not performed the structured exercise required.

[45]      Counsel argued that the respondent had found that an immigration judge might find that the petitioner had a relationship with his partner, but not with C.  He argued that no explanation was given for that and that the conclusion was illogical.  Further, counsel argued that it was well known that the economy of Zimbabwe had been destroyed and there was a huge exodus of people.  Therefore it was irrational to say that there was no reason to believe that the petitioner could not support himself and his partner in Zimbabwe.  The respondent stated that there is no reason to think that tamoxifen would not be available.  Counsel criticised the decision on the basis that even if there are clinics in Harare and Bulawayo, there was no reason to believe that the petitioner and his partner would be likely to go there.  The respondent found that it would not be “unduly harsh” to expect the petitioner’s partner to go to Zimbabwe with them.  That was not the correct test.  Instead, the circumstances should have been considered, namely that Ms N has a job, she has discretionary leave to remain, and she requires cancer medication.  She should not be expected to go to Zimbabwe and it is disproportionate to find that she should.

[46]      Counsel argued that the decision maker found that that the petitioner could maintain contact with C and the grandchildren from overseas.  It was stated “no evidence has been presented” rather than “no acceptable evidence” in connection with any detrimental effect on the grandchildren.  Given that there was evidence, that is an error of law.  The decision maker repeated that it had not been accepted that the petitioner exercised a parental role in C’s life.  There was no sufficient analysis for C out with the rules. 

[47]      The decision maker stated that it was not accepted that the case had “such peculiar features as to merit a grant of leave outside of the Immigration Rules, and for the same reason it is not accepted that there is a realistic prospect of an immigration judge thinking otherwise.”  Counsel argued that that must be a test of exceptionality given another name.  He reminded me of the case of Khan referred above. 

[48]      Counsel argued that the sum of these errors show that if consideration of proportionality had been properly carried out, there may have been a different outcome.  The decision is therefore fundamentally flawed.  There is more than enough evidence to show that an immigration judge might well take a different view of the evidence. 

 

Submissions for the respondent

[49]      Counsel for the respondent argued that there was no material error in law.  His motion was to sustain the respondent’s plea in law, repel the pursuer’s plea in law and refuse the order sought.

[50]      He agreed that the correct procedure was for the decision maker to ask herself if there was a realistic prospect of an immigration judge finding that the application amounted to a fresh application as defined.  That entailed considering the application both in terms of the rules and outwith the rules.

[51]      Counsel turned to the case inside the Immigration Rules, which the petitioner acknowledges depends on the relationship with C.  Two conditions have to be met, one being the existence of rights of access and the other being evidence showing that the petitioner is taking a role in the upbringing of his child and intends to continue to do so.  As discussed above counsel made a concession on the meaning of rights of access, but argued that any error made in relation to that was not material as the petitioner could not show the other necessary condition, that he took and intended to continue to take an active role in C’s upbringing.  Counsel argued that the petitioner did not apply for leave to remain on the basis of his relationship with C.  Rather his application was on the basis of his relationship with Ms N.  Most of his information was about his partner and her health problems.  C is mentioned on page 3 but there is no mention of residential access during the school holidays.  C’s letter is presented, but it only says that they are very close and that she gets advice from her father and it does not mention contact.  There is nothing to show that the petitioner played any role in safeguarding her health or emotional well being, nor in her education, nor her financial well being. Counsel argued that the information supplied by the petitioner is vague and contradictory.  He argued that the respondent made clear on the form and in the letter of acknowledgement what information would be helpful.  The petitioner produced no official documents about his involvement with C.  No explanation why such matters were inapplicable was given.  

[52]      In relation to the findings concerning the child’s best interests, counsel for the respondent argued that the principles set out in Zoumbas had been followed.  There is nothing to show that the respondent’s decision-making fell short in this regard.  The fourth principle amounts to saying that different judges can approach things in different ways.  The sixth principle shows it is important to have a clear idea of the child’s best interest before one asks if they are outweighed by the refusal of leave to remain.  Counsel argued that the respondent had done just that.  She said that removal of the petitioner would not have a particularly detrimental effect had no bearing on the child’s best interest.  That was a decision which was logical in light of the information that father and child lived in different cities.  Such contact could be continued using modern media rather than in person.  Therefore within the rules that was either no error at all or if there were any errors they were not material. 

[53]      Turning to the consideration of the best interests of C, counsel argued that the respondent had said enough.  He accepted that the case of Zoumbas was authority for the proposition that it was necessary to have a clear idea of what was in the child’s best interests and then ask if the refusal of leave to remain was outweighed by those interests.  The respondent decided that the child, having lived most of her life with her mother, not her father, and in a different city from her father, would not be detrimentally affected by removal.  Her contact with her father could continue in person or by modern media or both.

[54]      In relation to consideration outwith the rules, counsel argued the there was no material error of law.  Looking at the evidence available, any immigration judge would be bound to find the there was no case made for leave to remain outwith the rules.  Counsel argued from the case of Ashiq that there was no need for a complete second stage evaluation, if a case was fully considered under the rules.  He referred to the case of Huang v Secretary of State for the Home Department [2007] 2 AC 167 paragraphs 16 and 18 from which he argued that any rational decision maker would give weight to all of the relevant evidence, which would include immigration history and the need to maintain immigration control in a fair and consistent manner on one side of the scales, and on the other, the rights protected by article 8, to which respect must be shown.  He accepted that the age health and vulnerability of the petitioner may be relevant, but noted they were not relied on here.  The closeness and previous history of the family were in counsel’s submission not significant in this case, due to long period of living in different cities.  Thus it was he argued proportionate in this case to refuse leave to remain.  Counsel drew my attention to the dicta in Huang at paragraph 20 to the effect that there is no test of exceptionality.  He submitted that the cases in which leave to remain outwith the rules should be granted would be few in number; but that was a consequence of the rules, rather than exceptional circumstances being a necessary feature of any such case.

[55]      Counsel argued that the material consisted of that which was put before the respondent and it was not appropriate to speculate about what evidence might have been given.  That was in response to a question from me about amplification that might be given by the older siblings in this case.  Counsel referred me to the case of AA petitioner [2012] CSOH 76 in which Lord Doherty said that:

“In relation to that paucity [of evidence from the petitioner] it simply will not do to say that matters could be further explored if there was an appeal to an immigration judge.  It was for the petitioner to put before the Respondent the material on which his claim rests.”

I accept that counsel is right in his submission.

[56]      Counsel argued that the case out with the rules requires to be considered only on the premise that the rules are not met.  He argued that the respondent did not err in the way in which that the petitioner has contended.  In any event if there are any errors they are immaterial because any case outside the rules, on the material before the respondent, was bound to fail before another immigration judge. 

[57]      The petitioner’s arguments about proportionality from the cases of Mirza and Khan added nothing.  He referred to the case of Ashiq, which showed there was no necessity for a separate second stage if it was bound to fail following consideration within the rules, which included the matters that require to be considered for compliance with article 8 ECHR.  Counsel also noted that in paragraph 24 of that case, approval was given to the precarious nature of the rate to remain as part of the criteria, as was the consideration of whether removal would be “unduly harsh”.

[58]      Counsel for the respondent accepted that there was no test of exceptionality.  Nevertheless, he argued the case of MS v Secretary of State for the Home Department 2013 CSIH 52 was in point.  As in the present case, appendix F M to the new Immigration Rules was discussed.  The appendix is concerned in the generality with those seeking to enter or remain in the United Kingdom on the basis of the family life with a person who is a British citizen or is settled in the United Kingdom.  Detailed provisions are made for the requirements any such applicant must meet.  One of those is that the applicant should not be in the United Kingdom in breach of immigration laws, but there is an exception to that in paragraph EX.1 in respect of an applicant who has a genuine and subsisting parental relationship with the child who, insofar as relevant to the present case, has lived in the UK continuously for at least seven years immediately preceding the date of application, and circumstances are such that it would not be reasonable to expect the child to leave the UK. 

[59]      The respondent has issued instructions to officials as to the approach to be applied which are headed up “Exceptional circumstances.”  The instructions state as follows: –

“…'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.”

 

These instructions were described in the case of R (Nagre) v Home Secretary (2013) EW HC 720, and quoted in MS, as being clear and appropriate guidance to officials that they require to consider cases out with the rules in order to decide whether in a case on the particular facts a breach of article 8 rights would ensue.  In MS, the court noted at paragraph 24 that following the introduction of the new rules, it can be expected that cases where article 8 rights are asserted will be fewer than previously; the reason given is that explained in the case of Nagre as follows:–

“nonetheless, the new rules do provide better explicit coverage of the factors identified in case-law as relevant to analysis of claims under article 8 than was formerly the position, so in many cases the main points for consideration in relation to article it will be addressed by decision-makers applying the new rules.  It is only if, after doing that, there remains an arguable case that there may be good grounds for granting leave to remain outside the rules by reference to article 8 that it will be necessary for article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under the new rules to require the grant of such leave.”

 

A summary is given by the court in paragraph 30 as follows:–

“In summary, therefore, we are of opinion that in all cases where the right to private and family life under article 8 is involved the first stage must be to consider the application of the immigration rules.  The new rules are designed to cover the considerations that are relevant to an article 8 claim in a normal case.  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 and family life.  That exercise involves 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 case is 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.  These will include factors mentioned in paragraph 3.2.7 d of the home secretary’s instructions and also any other factors that may be relevant to the particular assessment of proportionality that is being undertaken.  The relevant factors will also include those mentioned in the rules themselves, notably in the rules 276 ADE – 276 DH and in appendix FM including section EX of that appendix.  The purpose of those provisions is to set out the factors that normally apply to the assessment of article 8 rights in an immigration context; consequently both the terms of those provisions and the underlying policy that can be discerned from those terms are of importance.  They must, of course, be weighed against the other special considerations that apply in the particular case.  Before it is necessary to embark on that second stage exercise, however, the application for leave to enter or remain must demonstrate a good arguable case that leave should be granted outside the rules; that are distinctive assessment of proportionality should be made to determine whether removal would infringe the applicant’s article 8 rights.  If that is not demonstrated, it can be assumed that the applicant’s article 8 rights will be adequately dealt with by applying the new rules.  Finally, the test of exceptionality should not be used any longer; instead decision-makers should focus on the question of whether the applicant has shown a good arguable case that has a heart application should be dealt with outside the rules.”

 

Counsel argued that in light of the guidance given in the case of M S, it was entirely understandable and acceptable that the decision maker in the present case had found that there were no “peculiar features”. That was not to fall into error by applying a test of exceptionality.

[60]      Counsel referred to the case of T A (Turkey) [2013] CSOH 122 as an example of M S being applied.  A further illustration could be found in the case of M F (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 in which the Court of Appeal in July 2013 considered a deportation case.  The court accepted that in cases of deportation and in cases of “precarious” family life to state that it is only in exceptional circumstances that removal of the non-national family member will amount to a violation of article 8 is not to apply a test of exceptionality. 

[61]      In considering the cases in which these matters have been discussed, counsel referred to the case of The Secretary of State v SS (Congo) [2015] EWCA Civ 387 in which a summary is given at paragraph 33 as follows:–

“In our judgment, even though a test of exceptionality does not apply in every case falling within the scope of Appendix FM, it is accurate to say that the general position outside the sorts of special context referred to above is that compelling circumstances would need to be identified to support a claim for a grant of L T R outside the new Rules in Appendix F M.  In our view, that is a formulation which is not as strict as a test of exceptionality or requirement of “very compelling reasons”… but which gives appropriate way to the focus consideration of public interest factors as find’s expression in the Secretary of States formulation of the new Rules in Appendix FM.  It also reflects the formulation in Nagre which has been tested and has survived scrutiny in this court:”

 

In the case of R (Agyarko) v Secretary of State Home Department [2015] EWCA Civ 440 the court found the following: –

“so far as concerns Mrs Agyarko’s claim under article 8 for leave to remain outside the rules, since her family life was established with knowledge that she had no right to be in the United Kingdom and is therefore a precarious in the relevant sense, it is only if her case is exceptional for some reason that she will be able to establish a violation of article 8: see Nagre paragraphs 39 to 41; S S (Congo), paragraph 29 and Jeunesse  v The Netherlands paragraphs 108 114 and 122.”

 

Therefore counsel submitted that an immigration judge would be bound to apply the following principles: –

1.  removal of someone not meeting the rules will in the great majority of cases be compatible with article 8.

2.  the terms and policies of the rules are relevant factors in assessing whether it is proportionate to remove someone when they do not meet the rules.

3.  no such disproportion is likely to be found when the factors relied on are

• fully taken into account in the rules
• ·very common features
• typical rather than unusual
• inevitably follow when discussing relationships

4.  in a case that is not covered by proposition 3, where family life developed when the applicant’s status was precarious, very great weight has to be given to the absence of exceptional circumstances.

5.  in cases not in category 3 or 4, it is not disproportionate to remove unless there are compelling circumstances. 

[62]      On the hypothesis that there is a family life between the petitioner and his children and grandchildren and partner, counsel argued that there was no realistic prospect of success for the petitioner if the immigration judge  applied the law correctly as set out above.  He started with evidence about the partner found at 6/4.  The statements focus on the petitioner’s partner’s health problems.  She has only discretionary leave to remain.  Ms N and the petitioner have been a couple since 2011 and lived together since 2013, a relatively short time.  Ms N had a tumour for which she got treatment and the petitioner went with her to appointments.  She got medicine.  What is lacking is information about how long she requires to take the drug for; what is the prognosis, and whether any other drug would be effective.  Counsel argued that the immigration judge could not rely on a layman’s account and would look for medical evidence.  All that there is a GP’s letter which just confirms the diagnosis.  Information about the availability of tamoxifen was out of date, and nothing contradicted the assertion that generic drugs would be available. The petitioner relied on his helping Ms N when she collapsed at work, but the hospital discharge letter shows that she was discharged within 24 hours and there is nothing to say that it was in any way connected to cancer. Therefore there is no evidence of anything preventing Ms N going to Zimbabwe, which is where she is from, except concern about the economy generally.

[63]      Concerning the children and grandchildren the following points are relevant:–

• They live in different cities from the petitioner
• contact is by visits and social media
• there is no evidence of the frequency of visits.

[64]      Counsel for the respondent argued that there is no realistic prospect of an immigration judge finding removal to be disproportionate.  Neither partner nor child is a British citizen.  There is also a poor immigration history in that the petitioner entered on a visitor’s visa in 2001 and has remained without permission; he served a ten month prison sentence for using a false instrument.  There is no evidence that he could not reintegrate in Zimbabwe.  The relationship with Ms N is not unusual and it developed only recently.  She is not a British citizen.  Regarding C, there is nothing compelling about the circumstances.  The petitioner already lives some distance from the child and the consequence of removal may be mitigated by modern communications which he already uses.  He can continue to contact his other children and grandchildren by social media.  In any event, the relationship with adult children and grandchildren was different from that with children: Lawlor v UK (App 12763/87) 4 July 1988.

[65]      In reply, counsel for the petitioner argued that the error made in relation to access rights was not immaterial, because an immigration judge might well accept that standing those rights, the evidence did show that the petitioner took an active role in C’s upbringing. He did not accept that the information supplied was either vague or contradictory.  He argued that the case outwith the rules had prospects of success; the rules required an active role in upbringing, whereas section 117 required a subsisting relationship.  Thus if the claim failed under the rules, there could still be success outwith the rules.

 

Decision

[66]      I agree with counsel for the petitioner that the letter of 27 March 2015 does not demonstrate that the decision maker applied the test correctly.  I do not see the required anxious scrutiny in considering all points which might tell in favour of the petitioner.  There is nothing in the letter about the fact that the petitioner has no relations left in Zimbabwe.  That does not appear to have been taken into account.  The assumptions about life in that country are all as favourable to the respondent’s position as they can be; there is no recognition that the tamoxifen may be unavailable or unaffordable; nor that the economic situation is such as to prevent the petitioner and his partner from making a living.  An immigration judge looking at the evidence might come to a different conclusion. 

[67]      The concession that the petitioner has access rights by agreement with his ex-wife is in my view both correct and material in the context of this case.  An immigration judge considering the matter afresh would be considering a family situation where by definition the petitioner did not live with his daughter, but may still take an active role in her upbringing, or whose removal might in any event be contrary to her best interests.  An immigration judge might decide that there was a genuine and subsisting relationship, even if it could not be described as one in which the petitioner took an active role in C’s upbringing.  In any event it may be difficult to find that such a relationship does not have an effect on the child.  Therefore if there is a relationship that in itself may be argued to amount to an active role in upbringing.  The respondent relied on the lack of official letters about the relationship.  The form supplied by the respondent and completed by the petitioner sought such letters in connection with the address of the child; it was in the letter seeking further information that it became a requirement for proof of the existence if a relationship.  An immigration judge might take the view that the existence of such material was unlikely, and might be satisfied by the evidence of the petitioner, his ex-wife and his daughter.

[68]      The consideration given to the relationship with adult children and the grandchildren was in my view sufficient, and was explained. I do however agree with counsel for the petitioner that the evidence supplied from the adult children by letters could be seen by an immigration judge as pointing towards the petitioner being a man who takes an interest in his family, and therefore supportive of him in his assertion of a relationship with C.

[69]      I do not require to decide any dispute between counsel about the necessity of a second stage consideration of article 8 factors outwith the rules, as the respondent appears to have proceeded on the basis that such was necessary and purported to carry it out.  I understood counsel to agree that Ashiq is authority for the proposition that in some cases no full blown second consideration is necessary, although the decision maker will always require to consider whether all article 8 rights have been considered under the rules.  This case was not said to be in that category.  Rather the argument was that the respondent had purported to consider the case outwith the rules, but had failed to do so properly.  I agree with counsel for the petitioner that the respondent reached a decision which she failed to justify and which is therefore in error.

[70]      Both parties agreed that there is no requirement for exceptionality, although cases where there is a lack of proportionality are likely to be few.  That is a consequence of the test that is to be applied.  In this case, the respondent did not consider all of the information before her; therefore her finding that the facts were not peculiar is not decisive.  I do not require to decide if that formulation of words does amount an exceptionality test given another name, as I find that the respondent did not give the facts of the case anxious scrutiny prior to coming to that view.

[71]      For these reasons I will sustain the first plea in law for the petitioner and refuse the pleas in law for the respondent.