Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 63

P1089/14

OPINION OF LORD BOYD OF DUNCANSBY

In the petition

J L

Petitioner;

for

Judicial Review

Petitioner:  Caskie;  Drummond Miller LLP

Respondent:  McIlvride QC;  Office of the Advocate General

2 June 2015

[1]        This is the petition of JL.  The petitioner’s immigration history is set out in the petition and I do not need to rehearse all of it.  However on 28 August 2013 he was convicted of an offence under the Misuse of Drugs Act and sentenced to 9 months imprisonment.  Following that the Secretary of State decided to deport the petitioner.  That decision was appealed to the First-tier Tribunal and the appeal was refused on 19 December 2013.  An application for leave to appeal to the Upper Tribunal was refused on 14 April 2014.  On 29 May 2014 an application was made on the petitioner’s behalf to revoke the deportation order.  That application was refused by the Secretary of State on 22 September 2014 and the decision was certified in terms of section 96 of the Nationality, Immigration and Asylum Act 2002 as amended.  The judicial review is taken against the decision to certify.

[2]        The law is not in dispute.  In RJ v The Secretary of State for the Home Department 2009 EWHC 705 Admin, Stadlen J set out a four stage process which the Secretary of State must follow in certifying under section 96(1) and (2) of the 2002 Act.  This has been followed in this court including by me in TN, Petitioner [2014] CSOH 85.  It is also I think accepted that in assessing the Secretary of State’s decision it has to be subjected to anxious scrutiny. 

[3]        The crux of the issue is what is contained in the letter from the petitioner’s partner’s general practitioner, a Dr Bhandery dated 25 June 2014 and submitted to the Secretary of State in support of the application for revocation.  The letter is in the following terms.  It is headed:

“A report prepared for medical records only

L has history of depression diagnosed in 2010.  She is currently not taking any medication.  I have seen her a few times in last 6 weeks with symptoms related to stress and scars from self-harm behaviour.  She is trying to care for her three children well and when children were admitted to hospital there were concerns if she would be able to continue to care for them without additional support.  Without doubt I can say there will be adverse effect on L’s and her children’s health if she loses the support of her partner.  Present only with the hope that her partner will remain with the family is she managing to cope with the stress and care of the children”.

[4]        The Secretary of State dealt with that matter in her letter of 22 September 2014 at paragraphs 98, 99 and 100 and is in the following terms:

“98.      The representations that you have made in support of your client’s claim on article 8 family and private grounds are substantially a reiteration of the claims that your client had previously made and which had been substantively considered and rejected when the decision was made in October 2013 to make a deportation order against him and which had also been dismissed at appeal.

99.       The medical report from a Dr L V Bhandery that was submitted as fresh evidence in June 2014 states that your client’s partner has a history of depression diagnosed in 2010.  However it is noted that this was not mentioned within your client’s appeal against a deportation decision in October 2013 and no satisfactory reason has been provided for not raising this matter regarding his partner’s health previously.

100.      The medical report from Dr Bhandery in June 2014 states that your client’s partner was seen by Dr Bhandery a few times within the preceding six weeks with symptoms related to stress and self-harming behaviour and the doctor expressed concerns as to whether the partner would be able to continue to care for the children without additional support.  Whilst it is noted that your client’s appeal had been determined, it is not accepted that the new information is by itself or when considered together with previously considered representations are sufficient weight to establish a fresh human rights claim”.

[5]        Mr Caskie’s short point was that properly construed what had been placed before the Secretary of State was a new matter which arose after the relevant date of 28 October 2013.  It was acknowledged that the letter records that the petitioner’s partner had a history of depression going back to 2010 but what was now disclosed was a history of self-harming and a concern for her ability to look after her children.  That was a new matter.  Not everyone suffering from depression, self-harms or is unable to look after children.  Mr Caskie also drew my attention to the last sentence of paragraph 100 where the Secretary of State appears to consider whether the representations were of sufficient weight to establish a human rights claim.  This he submitted showed that she had failed to consider the proper test and had made a qualitative decision on the merits.  Accordingly the Secretary of State had not properly conducted stage 4 of the process set out by Standlen J in RJ.  She had taken into account an irrelevant matter namely her view on the strength of the material. 

[6]        Mr McIlvride for the Secretary of State submitted that the letter from Dr Bhandery raised no new matter within the meaning of section 96(2) of the 2002 Act.  The partner’s depression should have been raised in response to the section 120 notice and no satisfactory reason for it not having been raised was given.  Mr McIlvride submitted that the letter explained that the petitioner’s partner had suffered depression since 2010.  She was not currently taking any medication.  What had happened was that in the last 6 weeks she had appeared with symptoms relating to stress and scars from self-harm behaviour.  If someone was suffering from long term depression that may manifest itself in different ways.  A new matter is not created every time a person goes to the GP even if the symptoms may be different.  All that was being seen was a different manifestation of the same matter. 

[7]        In TN I set out some of the considerations that lie behind the process of certification and the statutory framework in which that is made.  I pointed out that certification removes a right of appeal that would otherwise be available to a person being deported and that care should be taken in exercising the decision to certify.  But I also pointed out that there is a balancing exercise that Parliament has entrusted to the Secretary of State.  There are good policy reasons for the use of section 120 letters, principally in order to bring some finality to the process.  I also pointed out that it should be clear from the decision letter the factors that the Secretary of State had taken into account. 

[8]        It does appear, in the last sentence of paragraph 100, that the Secretary of State has embarked on an assessment of the strength of the new material before her.  However in my opinion the question is whether or not the Secretary of State has properly made a decision as to whether or not what was being placed before her is new material.  That is clear from the terms of paragraph 99.  Paragraph 100 takes the matter further by commenting on the merits but it does not appear to me that that is the decisive factor in the respondent’s decision.  In my opinion the operative paragraphs read as a whole show that the Secretary of State has made that assessment and found that the letter from Dr Bhandery does not contain new material. 

[9]        Looking at the terms of Dr Bhandery’s letter in my opinion it cannot be said that the decision was wrong or an error of law.  I agree with Mr McIlvride that it cannot be case that every time a patient attends her general practitioner with a different manifestation of the same problem that creates a new matter in terms of section 96(2) of the Act.  If that was the case then obvious difficulties would arise in bringing finality to the process in cases where medical issues may be raised.  That does not mean that a significant deterioration in a pre‑existing health could be disregarded on the grounds that it does not raise a new matter.  However, a judgment requires to be made as to whether or not what is placed before the Secretary of State is a new matter.  In this case I am satisfied that the Secretary of State has not erred in the exercise of her discretion.

[10]      Mr Caskie made a subsidiary point regarding paragraph 101.  It is not necessary for me to repeat it but in substance that paragraph suggests that the five stage approach under Razgar was now irrelevant as the decision required to be taken in accordance with the new legislation in Part 5A of the Nationality, Immigration and Asylum Act 2002 as inserted by the Immigration Act 2014.  Mr McIlvride conceded for the purpose of these proceedings only that it was an error.  However he maintained it was immaterial to this petition as there was no challenge to the decision on the merits.  I agree that paragraph 101 does not impact on the decision in this case which in my view clearly relates to the article 8 issues raised and discussed in the first 95 paragraphs of the decision letter.  Accordingly I shall sustain the respondent’s plea-in-law and refuse the prayer and dismiss the petition.