Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 73

P1182/14

OPINION OF SHERIFF P A ARTHURSON QC

(Sitting as a Temporary Judge)

In the Petition

RAMON DALISO ZULU

Petitioner;

for Judicial Review of decisions

by the Secretary of State for the Home Department

Petitioner:  Forrest;  Drummond Miller LLP

Respondent:  Komorowski;  Office of the Advocate General

9 June 2015

Background
[1]        The petitioner is a national of Zambia.  He arrived in the United Kingdom on 29 September 2007 on a student visa valid until 31 December 2008.  On 10 December 2008 he submitted a student leave to remain application, which was granted.  On 1 October 2009 he applied for leave to remain as an unmarried partner, which leave was granted on 14 January 2010.  On 29 December 2011 he applied for indefinite leave to remain as an unmarried partner, which application was refused on 17 December 2012.  On 7 January 2013 he lodged an appeal which was heard by the First-tier Tribunal (Immigration and Asylum Chamber) on 8 March 2013 and dismissed on 22 March 2013.  He applied to the First-tier Tribunal for permission to appeal which was refused on 15 April 2013.  He applied for permission to appeal to the Upper Tribunal which was refused on 16 May 2013.  He became appeal rights exhausted on 16 May 2013.  On 19 June 2013 he applied for indefinite leave to remain in the United Kingdom as a victim of domestic violence.  This application was refused on 22 October 2013.  An appeal was lodged and in due course withdrawn.  On 14 February 2014 he married LF in Livingston, West Lothian.  On 3 April 2014 he applied for leave to remain as a spouse of a settled person, which application was refused on 7 May 2014.  On 3 October 2014 he submitted a pre‑action protocol which was responded to on 6 October 2014.  On 14 October 2014 he was detained on behalf of the respondent and sent to Dungavel House Immigration Removal Centre, Strathaven.  On 16 October 2014 he submitted a further pre‑action protocol which was responded to on 24 October 2014.  On 24 October 2014 the petitioner’s solicitors wrote to the respondent submitting that further information amounted to a fresh claim and contending that the petitioner was now married to LF and had been involved in a seven year co‑habiting relationship with her.  This submission was rejected on behalf of the respondent on 12 November 2014.  On 18 November 2014 the respondent issued a decision to remove the petitioner from the UK to Zambia.

[2]        As counsel respectively developed their submissions in the course of the hearing before the court, the issue for determination was whether the respondent had erred in law in the decision promulgated on her behalf dated 12 November 2014 by refusing to treat the petitioner’s further submissions of 24 October 2014 as a fresh claim, and in particular whether the respondent was entitled to conclude that there was no realistic prospect of success on the part of the petitioner before another immigration judge, all under reference to Immigration Rule 353.

Submissions for the petitioner
[3]        Mr Forrest, counsel for the petitioner, contended that all decisions made on behalf of the respondent following upon the said application dated 24 October 2014 by implication of the petition before the court were properly brought under challenge, including the decision to refuse to grant the petitioner leave to remain dated 7 May 2014.  He observed in passing that that document contained an acknowledgment on behalf of the respondent that there did appear to exist a family life between the petitioner and LF, under particular reference to the phrase on the second page of that decision which was in the following terms:  “we have considered the seriousness of the difficulties which you and your partner would face in continuing your family life outside the United Kingdom”.   Counsel then turned in the course of his submission to address the court upon the new information contained in the application of 24 October 2014, properly highlighting in particular the marriage certificate pertaining to the marriage of the petitioner and LF on 14 February 2014.  The further supplementary documentation attached to that application disclosed that the petitioner and LF resided at the same address and that therefore it could be inferred that there may be a genuine relationship between them.

[4]        Counsel thereafter addressed the challenged decision of the respondent dated 12 November 2014.  Advancing his principal submission, counsel made clear that he was not contending that the issue of anxious scrutiny arose as an issue in this case.  He submitted, however, that the applicable law and the correct questions for the court to ask itself were accurately set out in RUS v Secretary of State for the Home Department [2015] CSOH 19 at paragraph 2.  The respondent had not properly applied the test under Immigration Rule 353, namely “a realistic prospect of success”.  Counsel proceeded to refer to the dicta of Buxton LJ in W M (DRC) v Secretary of State for the Home Department [2007] Imm AR 337 at paragraphs 6 and 7, highlighting the well‑known propositions that, first, the rule only imposes a modest test for an application to meet before it becomes a fresh claim, and, second, a future adjudicator does not have to achieve certainty.  In the instant petition, counsel submitted, in the context of a second adjudicator considering whether the petitioner and LF had a genuine pre-subsisting relationship, there was indeed a realistic chance that such a decision maker may indeed come to a different decision, favourable to the petitioner, on the basis of the new material contained in the application of 24 October 2014, taking into account of course the previous factual context.  Counsel drew the court’s attention to three questions deemed to be appropriate by Kay LJ in the consideration of whether a fresh claim had been constituted in terms of Rule 353 in TN (Uganda) v Secretary of State for the Home Department [2006] ECWA Civ 1807 at paragraph 11, namely:

“1)       Has the material been previously considered?

 2)        If not, could it reasonably be believed?

 3)        If it could, when considered with the previously considered material is there a reasonable prospect that a favourable view could be taken of the new claim?”

Counsel observed that the material he founded upon had not previously been considered, and that the question of fact of a subsisting genuine relationship between the petitioner and LF would in the light thereof be more readily ascertainable by a future decision maker.  He concluded that it was reasonable to consider that the new information may reasonably be believed in due course by a second fact finding official, and further that there was nothing intrinsically inconsistent therein which could prevent such a future fact finder deeming that the relationship was indeed genuine. 

[5]        Counsel next submitted that the terms of the decision letter disclosed an over-reliance on the findings of the First-tier Tribunal decision of 22 March 2013.  Counsel accepted that at that time there were certain discrepant factors in the relationship of the petitioner and LF and further accepted that while the respondent was entitled to take these factors into account, she had accorded too much weight to them in assessing whether or not there was a genuine relationship.  This submission was developed no further by counsel.  His final submission, also put briefly, was to the effect that the respondent in declining to accept that the 12 October 2014 submissions amounted to a fresh claim had erred in paragraphs 66 and 67 by applying the wrong test to consideration of the Article 8 claim for leave outside the Immigration Rules.  This submission also was not developed further, on the basis that counsel for the respondent had helpfully indicated at the outset of the hearing that he did not seek to defend the decision of the decision maker in the letter dated 12 November 2014 in respect of findings made concerning LF accompanying the petitioner in the event of a return to Zambia.

[6]        Counsel for the petitioner accordingly invited the court to sustain his second plea‑in‑law and to reduce the respondent’s decision dated 12 November 2014, and by implication all other decisions on behalf of the respondent following upon the petitioner’s further submissions of 24 October 2014.

Submissions for the respondent
[7]        Mr Komorowski, counsel for the respondent, submitted that examination of the decision letter of 12 November 2014 did not disclose the complaints advanced in the petition and contended for before the court by counsel for the petitioner to be well‑founded.  He accepted that the law was accurately set out in RUS, supra, at paragraph 2.  He submitted that the real question for the court was whether the respondent’s decision maker was entitled to come to the particular conclusion that she did.  The decision maker had properly asked herself and determined whether the petitioner had a realistic prospect of demonstrating to a future immigration judge on the balance of probabilities that he was in a genuine subsisting relationship with LF.  The correspondence enclosed in the application of 24 October 2014 was of some age.  The burden of the contention contained in that application amounted in effect to production of an extract marriage certificate.  A future fact finder would require to have regard to the findings of the First-tier Tribunal dated 22 March 2013, being the starting point for a second adjudicator and the “authoritative assessment” of the petitioner’s status at the time that that assessment was made:  Devaseelan v Secretary of State for the Home Department [2003] Imm AR 1 at paragraph 39(1).

[8]        Counsel’s submission, shortly put, was that the respondent was entitled to come to the conclusion, in the light of, first, the previous material available, including the assessment of that material by the First-tier Tribunal, and, second, the material contained in the application of 24 October 2014, that there was no realistic prospect of success for the petitioner before a second adjudicator.  Counsel proceeded to analyse in some detail the decision of the Tribunal dated 22 March 2013.  The immigration judge’s conclusions were, counsel submitted, woven in to his assessment of the evidence of witnesses.  From this analysis counsel took the dual propositions that at the time of that application the petitioner and LF were not in a genuine subsisting relationship, and further that both the petitioner and LF had given evidence that the Tribunal had concluded to be incredible in respect of that relationship.  Counsel referred to the petitioner’s application for indefinite leave to remain dated 19 June 2013 which, counsel observed, contained an affidavit from the petitioner providing details of his position as a victim of domestic violence at the hands of LF and claiming within the application that false charges had been brought against the petitioner by LF, who was described in the application as “his estranged partner”.  The letter from the petitioner’s solicitors dated 9 October 2013 confirmed the petitioner’s departure from the home he shared with LF on 13 April 2013.  The passage in the respondent’s notice of decision to refuse to grant leave to remain dated 7 May 2014, which had been founded on by counsel for the petitioner as a purported acknowledgment of continuing family life, could not be so read.  It was clear from its terms that there was no acceptance on behalf of the respondent that that was indeed the position.  Furthermore, this decision was promulgated after the marriage of the petitioner to LF and contained a paragraph detailing a home visit by immigration officers on 2 March 2014 to the purported family home in Livingston the details of which raised suspicion on the part of the officers that the petitioner and LF may not reside together.  In any event, no plea‑in‑law in the petition was directed to the decision of 7 May 2014.  Counsel next observed that the sponsorship declaration contained in the application of 24 October 2014 offered no explanation in respect of the apparently permanent end to the relationship set out in other documents.  The new material in the application had been expressly taken into account in the decision letter of 12 November 2014 at paragraphs 40 to 44, and at paragraph 67 the conclusion reached in the decision maker’s consideration of the claim for leave outside the Immigration Rules that the relationship was not genuine and subsisting.

[9]        The new material advanced in the application of 24 October 2014 containing a paucity of circumstantial evidence in favour of the petitioner, counsel for the respondent concluded his submission by contending of new that the decision maker was indeed entitled to come to the decision which she did come to, and that the court should sustain the second plea‑in‑law for the respondent and refuse the petition.

Discussion and decision
[10]      Having reflected on the submissions of counsel and considered the productions and authorities referred to therein, I am not satisfied that the petitioner has successfully established that the refusal by the author of the decision letter of 12 November 2014 to treat the further submissions for the petitioner dated 24 October 2014 as constituting a fresh claim was an irrational one.  It appears to me, reading the decision letter as a whole, that the decision maker has expressed the correct test at paragraphs 3 and 16 and has substantively throughout the document correctly applied that test.  A second adjudicator would require to take as his or her starting point the determination of the First-tier Tribunal dated 22 March 2013.  Insofar as the respondent’s decision maker placed weight on the content of the findings of that tribunal, it was entirely appropriate for her to do so, addressing as these findings did the issue of whether or not at that time there was a subsisting genuine relationship between the petitioner and LF.  Such prior findings as considered to be relevant by the respondent’s decision maker from that earlier decision must be regarded as properly having a bearing on any current analysis of that relationship.

[11]      Counsel for the petitioner expressly did not advance any submission to the effect that anxious scrutiny had not been applied by the decision maker.  His submission centred instead on his contention that it was an irrational conclusion on the part of the respondent’s decision maker to determine that there was no realistic prospect of another adjudicator reaching a different conclusion in respect of the question of a subsisting genuine relationship between the petitioner and LF.

[12]      I propose to deal with this central submission in short compass.  The documents contained in the application of 24 October 2014, apart from the marriage certificate, were founded upon in very general and brief terms by counsel in the course of his submission.  As I read these, there appears to be nothing contained therein from the petitioner himself which addresses the credibility findings of the First-tier Tribunal.   I further note that none of the ancillary correspondence contained in the application is addressed to the petitioner and LF in joint terms.  With regard accordingly to the principal document founded upon by counsel for the petitioner, namely the extract marriage certificate, it must be considered to be significant that the substantive decision by the respondent to refuse to grant the petitioner leave to remain as a spouse dated 7 May 2014 was taken on behalf of the respondent after the date of the marriage and, further, that although that 7 May 2014 decision is referred to in paragraph 10 of the decision letter of 12 November 2014, which is of course the subject of the substantive challenge by the petitioner in this process, nowhere within the petition before this court is any challenge advanced to that 7 May 2014 decision.  Insofar as counsel for the petitioner contended that the absence of any challenge to that decision was not relevant, I cannot accept that contention on the basis that this court is being invited to consider the issue of realistic prospect of success before a future adjudicator in the light primarily of a marriage certificate which had already been considered on behalf of the respondent as a matter of substance in the course of the unchallenged decision of 7 May 2014, which decision of course pre‑dates the challenged decision letter of 12 November 2014 and the further submissions dated 24 October 2014.

Disposal
[13]      For these reasons I accordingly hold that the petitioner has failed to establish any error of law on the part of the respondent’s decision maker.  I will therefore sustain the second plea‑in‑law for the respondent, repel the pleas‑in‑law for the petitioner and refuse the petition.   I reserve meantime all questions of expenses.