Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 37

 

P909/14

OPINION OF LORD ARMSTRONG

In the Petition of

A A A (AP)

Petitioner;

For the Judicial Review of a decision of the Secretary of State for the Home Department, dated 15 May 2014, to refuse to treat further submissions as a fresh claim.

Petitioner:  Mullan;  Drummond Miller LLP
Respondents:  Pirie;  Office of the Advocate General

8 April 2015

Introduction
[1]        The petitioner is a national of Nigeria.  She is married and has two young children.  She entered the UK, together with her children, on 20 April 2011.  Her husband followed her, entering the UK in June 2011.  On 28 March 2012, she made an application for asylum, citing her husband and children as dependents.  By decision made on behalf of the Secretary of State for the Home Department, dated 26 June 2012, her application was refused.  Her subsequent appeal to the Asylum and Immigration Tribunal was dismissed by decision dated 20 August 2012.  She sought and was granted permission to appeal to the Upper Tribunal.  By decision, dated 8 April 2013, the Upper Tribunal upheld the decision of the Asylum and Immigration Tribunal.  Her subsequent application for permission to appeal against the decision of the Upper Tribunal was refused by decision, dated 22 May 2013. 

[2]        By letter, dated 8 August 2013, the petitioner’s solicitors made further representations on her behalf (“the first submission”), requesting that they be treated as a fresh application for asylum under paragraph 353 of the Immigration Rules (HC395).  By decision made on behalf of the Secretary of State, dated 13 February 2014, (“the first decision”), the decision to refuse the petitioner asylum was not reversed, on the basis that the further representations did not amount to a fresh claim.  By letter, dated 15 April 2014, (“the second submission”), the petitioner’s solicitors made further representations on her behalf, based on article 8 ECHR rights, requesting that they be treated as a fresh application for asylum under paragraph 353 of Immigration Rules (HC395).  By decision made on behalf of the Secretary of State, dated 15 May 2014, (“the second decision”), it was stated that the petitioner’s article 8 rights had been carefully and fully considered in the first decision, that following review of the petitioner’s case and taking into account the evidence newly presented, her removal from the UK would not place the UK in breach of its obligations under article 8, and that there was no realistic prospect of an immigration judge, applying anxious scrutiny, reaching a different conclusion.  The petitioner seeks judicial review of the second decision. 

 

The case law
[3]        The parties were in broad agreement as to the applicable law.  The terms of paragraph 353 of the Immigration Rules provide that further submissions, made following refusal of a human rights or asylum claim, will amount to a fresh claim only if they are significantly different from the material that has previously been considered.  In that regard a two stage test is to be applied, viz:

“(i) the content of the further submissions must not already have been considered;

 

and

 

(ii) taken together with the previously considered material, they must create a realistic prospect of success, notwithstanding its rejection.”

 

            In terms of the decision in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, it has been recognised that the test, in that latter regard, is a somewhat modest one in that the question is whether there is a realistic prospect of success, but not more than that (paragraph 7);  that the determination of the Secretary of State can only be impugned on Wednesbury grounds (paragraph 9);  that the decision will be irrational if not taken on the basis of anxious scrutiny (paragraph 10);  and that the correct question for the Secretary of State is not whether she herself thinks that a claim is a good one or would succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return (paragraph 11). 

[4]        Further it was stated in AK (Sri Lanka), R (on the application of) v Secretary of State of the Home Department [2009] EWCA Civ 447, at paragraph 34: 

“…A case which has no realistic prospect of success is … a case with no more than a fanciful prospect of success. ‘Realistic prospect of success’ means only more than a fanciful such prospect …”

 

[5]        Anxious scrutiny is to be applied in accordance with the definition set out by Lord Carnwath in MN (Somalia) v Secretary of State for the Home Department [2014] UKSC 30, at paragraph 31.  In particular, every relevant factor should be taken into account. 

[6]        The applicable law in cases where the applicant does not satisfy the requirements of the Immigration Rules but resists removal, (as in this case) was reviewed in MS v Secretary of State the Home Department [2013] CSIH 52.   App. FM to the new Immigration Rules, which came into force in 2012, sets out the provisions relevant to those seeking to remain in the UK on the basis of their family life and is directed at the rights protected by article 8 ECHR (paragraph 5).  Although the new Immigration Rules do not have the force of statute, they were debated in Parliament and therefore have a degree of democratic approval and, as instructions put forward by the government minster, can be said to result from the democratic process.  These are factors to which weight should be attached when the application of the rules is considered by a court (paragraph 21).  In circumstances where, on the application of the new rules, the application fails and it is clear that consideration under the rules has fully addressed the family life or private life issues arising under article 8, it is not necessary to consider the case separately from rules.  The new rules are likely to deal adequately with the great majority of cases where article 8 rights to private or family life are put in issue (paragraph 26).  If a tribunal is asked to consider leave outwith the rules, the applicant must put forward a reason for doing so by reference to circumstances in which refusal would result in unjustifiably harsh consequences such that refusal of the application would not be proportionate (paragraph 28).  Common or typical features of cases where removal is ordered, such as the loss of contact or the prospect of difficulties likely to be faced following removal, do not indicate a good arguable case for an independent valuation of article 8 rights (paragraphs 33,34).  In any event, an error of law which is not material, in circumstances where the claim to private life in the UK is precarious, will not lead to a realistic prospect that an immigration judge might find removal to be in contravention of article 8 (paragraph 37). 

[7]        The fact that removal would sever or adversely affect a family relationship is a consequence of removal which will inevitably follow in every case in which reliance is placed on relationships in support of an article 8 claim, and is not a circumstance in which refusal would result in unjustifiably harsh consequences such as to render refusal disproportionate (TA (Turkey) [2013] CSOH 122 at paragraph 40). 

 

The submissions for the petitioner
[8]        The bases of the representations made in the first and second submissions were different.  The first submission had focused on the likelihood of the petitioner’s daughter being subjected to female genital mutilation (“FGM”), if returned to Nigeria.  That, it was submitted, was apparent from a proper reading of the solicitor’s letter and the attached supporting documentation.  Although the first submission had included a reference to the case of ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 and the well‑known passage, at paragraph 46, relating to the primacy of the importance to be accorded to a child’s best interests, that had been in the context of a consideration of FGM. 

[9]        The response constituted by the first decision had correctly applied the relevant tests in determining whether a fresh claim had been made.  Paragraph 6 of the decision was to the effect that the representations made were the same grounds as those put forward in the petitioner’s original claim for asylum, that is that, if returned to Nigeria, her daughter was likely to be at risk of being forced to undergo FGM.  The decision correctly set out the relevant previous immigration history and the previous findings, which included, at paragraph 118 of the decision of the First Tier Tribunal (“the FTT”), dated 20 August 2012, that it had not been proved that the children would be at risk of danger in Nigeria and that it would be in the best interests of each of them to live there with their parents.  It was clear from the first decision that the supporting evidence tendered as part of the first submission had been properly considered since its analysis extended to a number of pages.  It was significant that in identifying the relevant factors to be considered in the process of assessing proportionality, at paragraphs 38-46 of the first decision, it had been accepted that during the petitioner’s time in the UK she would have established a family life with her husband and children, although it was not accepted that returning the family to Nigeria would constitute an interference with that family life since they could return together and continue their family life there (paragraph 45).  More particularly, it was significant that it was recognised that “little evidence had been provided to show the extent and quality of (the petitioner’s) private life”, (paragraph 46).  The first decision had correctly followed the guidance set out in MS, at paragraph 28, in its treatment of proportionality by reference to a good arguable case and had correctly considered paragraph 353 of the Immigration Rules.  In general, no criticism was directed towards the first decision. 

[10]      Against that background, the thrust of the context of the second submission made on the petitioner’s behalf was identified at page 2 of her solicitor’s letter, dated 15 April 2014:

“(The petitioner) turns her focus to a human rights claim which is primarily predicated on her family’s established private and family life within the United Kingdom”. 

 

It was submitted that the second submission, comprising the solicitor’s letter and supporting evidence, which extended to some 53 pages in all, provided evidence of a settled and integrated family life in the UK and addressed article 8 issues by reference to integration, demonstrated by involvement with the church, school, the Girl’s Brigade, the wider family, friends and the local community. 

[11]      Under reference to the guidance set out in ZH (Tanzania), at paragraphs 25, 44 and 46, in relation to the proper assessment of what is in a child’s best interests, it was submitted that the quality of the evidence included in the second submission indicated an exceptional level of integration such that removal would result in a breach of article 8.  To the extent that the pursuer and her husband had been the subject of earlier criticism, in that the FTT had not found their evidence to be credible in relation to the contended real risk of exposure to forced FGM, the documents comprising the supporting evidence of the second submission were separable and cast the petitioner and her husband in a favourable light as the parents of children who clearly were well accepted in, and making a positive contribution to, their community. 

[12]      In circumstances where it had been recognised in the previous decision that there had been little evidence of private life provided, the second submission and the evidence included in it ought to be considered as a response designed to correct that omission. 

[13]      The second decision was expressly described, in its own terms, as a supplementary refusal letter to be read in conjunction with the first decision.  In overview, it was characterised by its brevity, comprising only three pages, the only analysis in which extended to three short paragraphs:

“7.  It is noted that the letters above have not previously been considered and it is accepted that the letters evidence the establishment of private life in the UK.  You will note however, that your client’s article 8 rights were carefully and fully considered as recently as 13^th February 2014, just three months ago.  In reviewing your client’s case taking into account the evidence now presented it is considered that your client’s removal from the UK would not place the UK in breach of its obligations under article 8. 

8.  It is further considered that there is no realistic prospect of an immigration judge applying anxious scrutiny, reaching a different decision. 

9.  The Secretary of State is content that removal from the UK remains appropriate.”

 

[14]      In so far as the second decision was concerned, there had been an error of law constituted by the failure properly to consider the further representations and evidence of the second submission.  In circumstances where, it was contended, the second submission presented a good arguable case, the decision maker had failed to consider whether the Immigration Rules applied, and, in circumstances where they did not, to apply the appropriate test as set out in MS, at paragraph 28.  There had been a failure properly to carry out the appropriate balancing exercise in assessing proportionality and properly to consider whether refusal would have such unjustifiably harsh consequences as to render it disproportionate.  In essence, the decision maker of the second decision had abrogated the responsibility of considering these issues, in relation to private and family life, to the decision‑maker of the first decision.  That was evident from the sentence found in paragraph 7 of the second decision, in the following terms:

“You will note, however, that (the petitioner’s) article 8 rights were carefully and fully considered as recently as 13th February 2014, just three months ago.”

 

Had it been the case that the first submission had focused on, and provided evidence of, private and family life, such an approach might have been defensible.  In reality, however, the first submission had not been focused on article 8 rights but rather on the prejudicial risk of likely exposure to FGM (matters which were more correctly characterised as being related to the likely breach of article 3 rights).  In circumstances where it had been expressly stated in the first decision that little evidence had been provided to show the extent and quality of private life, thereafter not properly to consider such evidence when it was provided, on the basis that it had been considered recently, was irrational and did not amount to anxious scrutiny.  As was clear from the case of WM (DRC), at paragraph  11, when reviewing a decision of the Secretary of State as to whether a fresh claims exists, there were two questions to be addressed:  first, whether there was a realistic prospect of an adjudicator finding that the applicant would be exposed to risk of persecution on return, and secondly, whether the requirement of anxious scrutiny had been satisfied.  If the court could not be satisfied that the answer to both of these questions was in the affirmative, it would have to grant an application for review of the Secretary of State’s decision.  Where there had been no anxious scrutiny, the decision should be reduced on that basis alone. 

[15]      Furthermore, the second decision, in its terms, disclosed no basis on which it could be discerned that there had been a consideration of whether there was a good arguable case for an assessment of article 8 proportionality based on the new evidence.  A determination as to whether there was a good arguable case was necessary in order to decide if the second test of paragraph 353 of the Immigration Rules, that there was a realistic prospect of success, had been met (MS, at paragraphs 28,30).  In order to determine if there is a good arguable case that the consequences of refusal would be unjustifiably harsh so as to render it disproportionate, there was a need for assessment of the evidence presented.  On a plain reading of the second decision, the inference to be drawn must be that no such assessment had been undertaken.  Instead, reliance was placed on the assessment made in the first decision.  Since there had been no assessment of the new evidence presented in the second submission, the second decision could not have involved an assessment of article 8 proportionality by reference to, for example, the position of the children in relation to their schooling and integration in their local community or to their best interests generally. 

[16]      In response to the respondent’s submission that the petitioner’s case before the FTT would be bound to fail in any event, for lack of an arguable case, reliance was placed on the dictum quoted from AK (Sri Lanka), at paragraph 34.  All that was required was something more than a fanciful prospect of success.  In that regard, article 8 cases were inevitably fact specific and should be decided on the particular factors pertaining.  Questions of materiality would undoubtedly arise, but the matter had to be assessed in the context of anxious scrutiny.  Where that aspect of the process was lacking, the decision must inevitably be irrational and unreasonable.  On that basis the second decision should be reduced. 

 

The submissions for the respondent

[17]      Under reference to MS, at paragraphs 5, 21, 26, 28, 30, 33 and 34, and to TA (Turkey) at paragraph 40, there were five salient points to be recognised when considering the law applicable to the decision-maker’s task in a case such as the petitioner’s: 

1.  Removal when the applicant does not meet the requirements of the new rules will in most cases be article 8 compliant; 

2.  Removal when the applicant does not meet the requirements of the new rules may breach article 8 where it would result in unjustifiably harsh consequences such as to render it disproportionate; 

3.  Having considered an application under the rules, the decision maker should not consider such consequences unless the claimant puts forward reasons for doing so that amount to a good arguable case that such circumstances exist;

4.  The terms and policy of the new rules are relevant factors to be taken into account in the assessment of whether there would be disproportionality or a good arguable case for it;

5.  There will be no good arguable case where the facts relied upon

 (i) are fully taken into account in the content of the new rules; or

(ii) are common features or typical, rather than unusual, consequences where removal is ordered, or otherwise factors which inevitably follow in any case in which family life is relied upon in an article 8 claim. 

 

[18]      Under reference to the content of the first and second submissions and the first and second decisions, a number of points were highlighted.  As a starting point, it was significant that within the first decision, in the context of a rehearsal of the relevant immigration history (paragraphs 42-44), it was clear that the FTT had made a finding that it would be in the best interests of each of the petitioner’s two young children to return to Nigeria to live there with their parents (paragraph 36).  Since the petitioner’s appeal to the Upper Tribunal against the decision of the FTT had been unsuccessful, that finding by the FTT was still standing at the time of the first decision and indeed the second decision.

[19]      In so far as the first submission was concerned, its emphasis, as had been the case in the petitioner’s failed claim for asylum, was on the risk of FGM, but nevertheless the solicitor’s letter had made reference to article 8, the need for a proper assessment of proportionality in the context of the best interests of the petitioner’s daughter and had requested consideration of the representations made in the light of the guidance given in the case of ZH (Tanzania). 

[20]      The first decision set out, correctly, at paragraphs 8-12, by reference to the cases WM(DRC) and AK (Sri Lanka), the law to be applied in relation to paragraph 353 of the Immigration Rules.  It correctly identified, (at paragraph 13), that in that regard, the FTT’s determination should be the starting point.  The FTT’s determination was based on the finding that it was in the best interests of the petitioner’s young children to return to Nigeria.  That was the relevant starting point in considering the questions raised by paragraph 353.  The significance of that was that, in consequence of the appeal being unsuccessful, the family would be removed as a whole.  In such circumstances, the decision to remove could not be said to interfere with family life.  On the contrary, removal would be compatible with family life for the purposes of article 8. 

[21]      Based on the immigration history of the petitioner and her family, it was accepted in the first decision (at paragraph 45) that the petitioner would have established a family life with her husband and children while living in the UK for a period of some two years and eight months.  The same paragraph confirmed, consistent with the findings of the FTT, that it was not accepted that returning the family to Nigeria would be an interference with that family life, since the family could return to Nigeria together.  Paragraph 46 confirmed that it was accepted that during her time in the UK, the petitioner would have established a private life, but noted that little evidence had been provided to show its extent and quality. 

[22]      In such circumstances, the question of whether interference with private life would be proportionate required an assessment in line with the guidance in MS and a determination whether in that regard there had been established a good arguable case.  The petitioner’s case was properly considered under the Immigration Rules at paragraphs 46-52 of the first decision.  Neither the petitioner, nor her husband, nor the children, met the requirements of rule 276 ADE referable to private life in respect of continuous living in the UK (20 years in respect of an adult; seven years in respect of a person under the age of 18 years).  Following the consideration of whether the petitioner met the requirements of rule 276 ADE and the finding that she did not (paragraphs 46 and 47), it was determined that there was no realistic prospect of an immigration judge, applying anxious scrutiny, coming to a different conclusion (paragraph 48).  On the evidence then available, it was determined that nothing had been presented to demonstrate that the petitioner would be unable to re-establish a private life on return to Nigeria (paragraph 47).  The petitioner did not meet the criteria of section EX. 1 of App. FM to the Immigration Rules.  On review of the evidence as to education and health and welfare, it was determined that it would not be unreasonable to expect the petitioner’s children to leave the UK (paragraphs 49 and 50). 

[23]      In circumstances where the petitioner did not meet the requirements of the Immigration Rules, the two stage approach set out in MS, paragraph 20, was considered and a determination made that no good arguable case had been disclosed to the effect that the rules would produce an unfair or disproportionate result (paragraphs 53 and 54).  Nevertheless, notwithstanding the lack of a good arguable case, consideration was given to whether there were any exceptional circumstances which might render removal disproportionate.  In the absence of evidence pointing to any exceptional circumstances, and attaching due weight to the need to maintain immigration control, it was determined that the petitioner’s removal was proportionate (paragraph 55).  It was legitimate to describe these paragraphs (46-55) of the first decision as a lengthy and detailed consideration of the petitioner’s article 8 claim.    

[24]      The content of the solicitor’s letter comprising part of the second submission was, in essence, a repeat of the content of the letter which had comprised part of the first submission.  It included references to FGM and a summary of the case law relating to the determination of article 8 claims in the context of the Immigration Rules.  The supporting evidence could be summarised as demonstrating that the cousin, sister and brother of the petitioner’s husband and their families, who lived respectively in Manchester, London and Edinburgh, all had good relationships with the petitioner’s family;  that the petitioner and her family were accustomed to life in the UK and attended church; that the children attended school and where well settled; and that the petitioner’s daughter was a member of the Girls’ Brigade.  That evidence was demonstrative only of the typical features of family and private life in such a case and fell short of a good arguable case on the issue of proportionality. 

[25]      The second decision was expressly described as a supplementary refusal letter to be read in conjunction with the first decision (paragraphs 3, 11).  The evidence provided with the second submission was correctly and fully listed in the body of the decision (paragraph 6).  Although the analysis of the new material was confined to three paragraphs, it was implicit in their content that the new evidence had been considered and that the petitioner’s case had been reviewed in light of it.  The review included an acceptance that the evidence established the existence of a private life in the UK (paragraph 7).  That was consistent with the acceptance of an established private life in the first decision (paragraph 46).  The effect of the review was that, notwithstanding the evidence supporting the establishment of private and family life in the UK, provided with the second submission, the conclusion reached remained that determined in the first decision. 

[26]      Against that background, it was submitted for the respondent that there were three lines of reasoning why the second decision should not be reduced. 

 

The respondent’s arguments against reduction (1):

Error of law
[27]      The assertion made for the petitioner, to the effect that the second decision contained errors of law, fell into four parts:

(i) The second decision was irrational and had been reached by taking an irrelevant consideration into account in that it was determined, wrongly, on the basis that the petitioner’s claim under article 8 had already been carefully and fully considered in the first decision;

(ii) The second decision was unreasonable in the Wednesbury sense in that there had been a failure properly to assess the available information tending to show that the petitioner had established an article 8 claim;

(iii) The second decision betrayed an absence of anxious scrutiny;

(iv) The content of the second decision did not provide adequate and comprehensive reasons for the conclusion reached. 

Taking these criticisms in turn, the respondent’s submissions in answer were to the following effect:

 

(i) Irrationality and irrelevant considerations
[28]      It was clear that the first decision had considered the issues arising under article 8 on the information then available.  No criticism had been made of the first decision in that regard.  Indeed, given the reference to article 8 in the first submission, that approach was entirely appropriate.  The consideration of the article 8 claim, as set out in the first decision, had been lengthy and detailed.  Properly assessed, that consideration of the issues could not be said to be irrational and it was not submitted for the petitioner that it was.  In circumstances where the second decision was supplemental to the first, the quality of the consideration undertaken in the first decision was relevant to an assessment of the rationality of the second decision.  Since the effect of the second decision was that the further representations and evidence comprising the second submission provided nothing new, it was both relevant and rational for the decision‑maker of the second decision to rely on the findings of the first decision. 

 

(ii) Wednesbury unreasonableness
[29]      In so far as family life was concerned, the terms of the first decision included a finding that return to Nigeria would not amount to an interference, since the family could return together.  The rationale of that finding had not been challenged. 

[30]      In so far as private life was concerned, the first and second decisions, read together, indicated a reasonable decision-making process.  On the basis that it was accepted that there would be interference, it was recognised that an assessment of proportionality was required.  On an application of the rules, it was determined that there was no good arguable case for a full free‑standing assessment of proportionality and that there was no realistic prospect of an immigration judge reaching a different decision. 

[31]      In approaching the question of whether removal was a proportionate interference with article 8 rights, it was to be noted that “the scales were heavily weighted in favour of deportation” and that something very compelling and exceptional was required to outweigh the public interest in removal (MF (Nigeria) v Secretary of State for the Home Department [2014] 1WLR 544 at paragraph 42;  MS, at paragraph 29).  On that basis, having regard to the material presented in the second submission, the removal of the petitioner could not be said to be disproportionate.  In circumstances where there was no evidence supporting a good arguable case for consideration outwith the rules, the assessment that the petitioner would have no realistic prospects of success before an immigration judge was within the range of reasonable assessments open to the decision-maker of the second decision.  The reaching of that conclusion was justified by the facts that:

(a) The FTT had taken as its starting point what was in the best interests of the children;

(b) Weight required to be given to the policy of the rules, in light of the democratic process which underpinned them, when determining whether removal was proportionate; 

(c) The evidence of private life submitted was unremarkable, and demonstrated a period of less than three years living in the United Kingdom (less than one sixth of the rule 276 ADE requirement for an adult, and only half of that which was referable to the petitioner’s children); 

(d) Private life was established in circumstances where immigration status was precarious.  The petitioner had never had more than two years leave and her husband had never had leave at all, but had entered the UK and worked there illegally.  Both had lived the majority of their lives in Nigeria; they both had extended family and friends there; their first language, English, was used in Nigeria; and there was no evidence suggesting medical problems or difficulties in integrating. 

In such circumstances, where the petitioner’s private life was taken into account in the application of the rules, there was nothing in her case which was very compelling such as to outweigh the heavily weighted public interest in removal, per MF (Nigeria). 

 

(iii) Anxious scrutiny
[32]      Properly read, the content of the second decision demonstrated that every factor referable to the evidence submitted in the second submission had been taken into account.  That was apparent by reason of the compiled list of the documentary evidence which had been provided with first submission, the express recognition that it had not previously been considered, and the stated view that it supported the establishment of private life (paragraphs 6 and 7). 

 

(iv)  Inadequate reasons
[33]      Although the second submission was lengthy and to some extent repetitive, it was not necessary that the second decision made reference to every detail of it or to evidence already presented.  The test was whether the informed reader would be left in any material doubt as to the basis of the decision.  In that regard, the informed reader would be aware of the material before the decision‑maker of the first decision, the terms of the first decision (including the discussion within it relating to article 8 and the conclusions reached in that regard), and the content of the second submission and the associated supporting evidence.  In these circumstances, it would be apparent to an informed reader that the second decision adopted the analysis of the first decision, took into account all the material available, and expressed the conclusion that although private life was established, there was no basis on which the determination of the first decision should be altered. 

 

The respondent’s arguments against reduction (2):

Materiality
[34]      It was submitted that even if the second decision resulted from an error of law, that error was not material.  In circumstances in which it was accepted that the petitioner did not meet the requirements of the Immigration Rules and in which, accordingly, it was incumbent on her to present a good arguable case that refusal would result in unjustifiably harsh consequences such as to render it disproportionate, given the fragile nature of her claim to private life in the UK, the evidence available was insufficient for that purpose.  Since the petitioner could not establish disproportionality, her case would necessarily fail before the FTT.  In such circumstances it was legally correct to reach the conclusion that there was no realistic prospect that an immigration judge might find removal to be in contravention of article 8 (MS, paragraph 37). 

 

The respondent’s arguments against reduction (3):

Substantial prejudice
[35]      Even if the reasons given in the second decision were inadequate, the petitioner had not established that substantial prejudice had resulted as a consequence, such as to justify the discretionary remedy of reduction.  Legally inadequate reasons were a necessary but not a sufficient reason for reduction.  The additional necessary condition is that of genuinely substantial prejudice.  Reference was made to BM v Secretary of State for the Home Department [2011] CSIH 32, at paragraph 20, in which Lord Brown’s dictum in South Buckinghamshire District Council v Porter (No.2) [2004] UKHL 33, at paragraph 36, was quoted in the following terms:

“A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision”.  

 

In the absence of such prejudice having been established, in circumstances where the petitioner’s case would have no realistic prospect of success before the FTT, reduction on the basis of inadequate reasons alone was not appropriate. 

 

Determination of the issues

[36]      As the hearing progressed, it became increasingly apparent that one of the principal differences between the parties – that is the nature of the content of the first submission – was one of perception.  Although from the perception of the petitioner, the principal topic was that of the risk of FGM, it was clear that the first submission, nevertheless, included reference to article 8 rights and to the need for a proper assessment of proportionality in the best interests of the petitioner’s daughter, and requested consideration of the representations made in the light of the guidance set out in ZH (Tanzania). 

[37]      In these circumstances it is unsurprising that, in a lengthy and detailed consideration of the merits of the first submission, the first decision included appropriate reference to, and assessment of, the issues arising in relation to article 8.  In the event, that lengthy and detailed consideration extended to some seven pages of the 25 page document (paragraphs 36‑56), and included an appropriate article 8 proportionality assessment.  As part of that, it was accepted that family life in the UK had been established (paragraph 45), as had private life in the UK, but with the proviso that, in relation to private life, little evidence had been provided to show its extent and quality (paragraph 46). 

[38]      When, in response to that, further evidence was provided on behalf of the petitioner in the second submission, the question for the decision‑maker of the second decision was, in effect: 

“How, if at all, should the determination of the article 8 issues already made in the first decision be altered in the light of the new evidence provided in the second submission?”

 

[39]      On a plain reading of the second decision, notwithstanding its relative brevity, I accept that its terms adequately convey to the informed reader that the decision‑maker adopted the relevant analysis of the first decision, took into account the new evidence submitted since the first decision and came to the conclusion that, although it demonstrated the establishment of private life in the UK, there was no basis on which to alter the determination of the first decision.  That being so, I am not persuaded that the content of the second decision does not provide adequate reasons for the conclusions reached.  I do not accept that the terms of the second decision betray irrationality, in the sense of failing properly to consider the new evidence on private life submitted with the second submission when a paucity in that regard, in relation to its extent and quality, had previously been recognised. Neither do I accept that the second decision is irrational in the sense that it was determined on the basis that there was no need to consider the new evidence because it had already been carefully and fully considered in the first decision.  In line with that, and for the same reasons, I do not accept that the terms of the second decision betray an absence of anxious scrutiny in relation to any of the factors impinging on private and family life in respect of which evidence was provided in the second submission. 

[40]      Further, I accept that the text, included at paragraph 7 of the second decision, to the effect that “(the petitioner’s) article 8 rights (had been) carefully and fully considered … recently… just three months (previously)”, was an appropriate and accurate description.  On the basis of my assessment of how the terms of the second decision should properly be construed,   I agree that the rationality of the second decision is to be judged by reference to that of the first decision (in respect of which no criticism has been advanced).  The second decision was after all, in terms, to be regarded as a supplementary refusal letter to be read in conjunction with the first decision.

[41]      In the event, I consider that a plain reading of the second decision would not leave the informed reader in doubt that, whereas the new evidence provided with the second submission was indicative of integration in, and contribution to, the community, these being matters in relation to which the petitioner and her husband could no doubt be applauded, nevertheless, in the context of the requirement to establish a good arguable case of unjustifiably harsh consequences such as to render refusal disproportionate, that evidence was insufficient for that purpose.  I accept that it demonstrated common features which could not be said to be likely to give rise to unusual, (rather than typical), or exceptional consequences which would follow in the event of refusal.  Rather, the new evidence demonstrated factors which would inevitably follow in any such case in which family or private life was relied upon in an article 8 claim.  To assess the new evidence in that way was a reasonable and rational basis for the decision that, following the review referred to in the second decision, the conclusion reached in relation to the establishment of family and private life in the UK was the same as that determined in the first decision.  In circumstances where such a finding was within the range of reasonable discretion afforded to the decision‑maker, I am not persuaded that the second decision was unreasonable in the Wednesbury sense. 

[42]      In any event even if the second decision did result from an error of law, I am persuaded that it would not be material.  In circumstances where the petitioner did not meet the requirements of the Immigration Rules; where her immigration status was precarious;  given the weight to be attached to the policy of the rules; taking the limited effect of the new evidence provided with the second submission into account; and given the decision, still standing, as to the best interests of her children;  I consider that the assessment that the petitioner could not establish an arguable case for disproportionality consequent on refusal is justified, and that accordingly her claim before the FTT would have no realistic prospect of success.  In that regard, and for that reason, I also accept that she could not be said to be substantially prejudiced by the second decision. 

 

Decision
[43]      I am persuaded by the submissions for the respondent.  There is nothing in the decision, dated 15 May 2014, to suggest an error of law or, in particular, that its conclusions were the product of irrationality by taking an irrelevant consideration into account, or that there was a failure to apply anxious scrutiny.  I am satisfied that the decision is not unreasonable in the Wednesbury sense, and that it does provide adequate reasons for the conclusions reached.  I consider that in the making of the decision, the applicable case law, as set out in WM(DRC), AK(Sri Lanka), MN(Somalia), MS, TA(Turkey), ZH(Tanzania) and MF(Nigeria), was correctly applied. 

[44]      For these reasons, I shall sustain the first plea-in-law for the respondent, repel the petitioner’s plea-in-law and dismiss the petition.  I reserve the question of expenses.