Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 157

 

P1045/15        

OPINION OF LORD KINCLAVEN

in the petition of

ASG (AP)

Petitioner;

for

Judicial Review of a decision by the Secretary of State for the Home Department

Respondent:

Petitioner:  Forrest;  Drummond Miller LLP

Respondent:  Webster;  Office of the Advocate General

8 November 2016

Introduction and Overview
[1]        This is a petition seeking judicial review of a decision by the Secretary of State for the Home Department dated 6 February 2015 refusing to accept that further submissions (submitted on behalf of the petitioner) amounted to a fresh claim for breach of his human rights.

[2]        The case came before me for a first hearing.

[3]        Mr Forrest appeared for the petitioner.  He submitted that the respondent had erred in law in reaching the decision dated 6 February 2015 and that the decision should be reduced as sought.

[4]        Mr Webster appeared for the respondent.  He contended that there had been no material error of law and that the orders sought should be refused.

[5]        Having considered the submissions of both parties, and the documents produced, I have reached the conclusion (for the reasons outlined below) that the respondent’s submissions are well founded.

[6]        Accordingly, I shall sustain the respondent’s third and fourth pleas-in-law, repel the petitioner’s plea-in-law and refuse the orders sought in the petition.

[7]        I shall reserve meantime the question of expenses.

[8]        I would outline the background and my reasons as follows.

 

The Background
Productions

[9]        The productions for the petitioner were as follows:

6/1       Letter dated 6 February 2015 from the respondent to the petitioner’s solicitors.

6/2       Letter dated 24 August 2015 from the petitioner’s solicitors to the respondent.

6/3       Letter dated 25 August 2015 from the respondent to the petitioner’s solicitors.

6/4       Letter dated 1 April 2014 from the respondent to the petitioner’s previous solicitors.

6/5       Letter dated 17 November 2014 from the petitioner’s solicitors to the respondent.

 

Authorities

[10]     The authorities for the petitioner were as follows:

1.         WM (DRC) v Secretary of State for the Home Department (2007) Imm AR 307, particularly at paragraphs 6, 7, and 11;

2.         Nagre v Secretary of State for the Home Department (2013) EWHC 720, paragraphs 13 and 49,

3.         Mirza v Secretary of State for the Home Department (2015) SC 572, paragraphs [9], [12], [15] and [21]; and

4.         MS v Secretary of State for the Home Department (2013) CSIH 52, paragraph [30].

 

[11]     The authorities for the respondent were:

• Ashiq v Secretary of State for the Home Department 2015 SC 602, particularly at paragraphs [2] to [5];
• SB, Petitioner [2015] CSIH 72, paragraphs [27] to [31], and [40];
• Jeunesse v Netherlands (2015) 60 EHRR 17 paragraphs 107 and 108 ;and
• Nationality, Immigration and Asylum Act 2002, sections 117A and 117B(3) and (4).

 

The Petition
[12]      The petitioner is ASG.  He lives in Glasgow.  His date of birth is 1 July 1968.  He is a national of Nigeria.  The respondent is the Secretary of State for the Home Department.  She is responsible for the enforcement of immigration and nationality legislation and related provisions throughout the United Kingdom of Great Britain and Northern Ireland (“UK”).

[13]      On 6 February 2015 the respondent issued a decision refusing to accept that further submissions submitted to her on behalf of the petitioner amounted to a fresh claim for breach of the petitioner’s human rights (No. 6/1 of Process).  There is no right of appeal against her decision.  The only way in which the petitioner can challenge her decision is by way of judicial review.

[14]      The petitioner was aware of the terms of Practice Direction No. 2 of 2013 in terms of which a petitioner in such proceedings is required to draw and intimate to the respondent a pre-proceedings letter.  On his behalf, his solicitors on 24 August 2015 wrote a letter to the respondent in appropriate terms (No. 6/2).  On 25 August 2015 the respondent replied (No. 6/3).  She adhered to her decision dated 25 February 2015.

[15]      The petitioner now seeks –

(i)         reduction of the decision of the respondent dated 6 February 2015 (No. 6/1) refusing to accept that further submissions submitted to her on behalf of the petitioner amounted to a fresh claim for breach of his human rights;

(ii)        The expenses of this petition;

(iii)       Any such further order or orders as to the court may seem just and equitable.

[16]      The circumstances in which the petitioner seeks these orders are:-

[17]      On 22 September 2004 the petitioner entered the UK.  He remained after the expiry of his visa.  He subsequently submitted a claim that his Article 8 ECHR rights would be infringed if he was not allowed further leave to remain.  His claim was rejected and his appeal before the First tier Tribunal failed in 2008.  He lodged two subsequent fresh human rights claims.  Both were rejected by the respondent.

[18]      On 30 March 2013 the petitioner married PN (“P”).  She is national of Uganda.  On 26 May 2013, P gave birth to their child (IG).  Both the petitioner and P have along with IG established and developed a family life in the UK.  A separate claim by P for asylum and breach of human rights was rejected.  A fresh claim by her was also rejected by the respondent on 1 April 2014.  The petitioner fears that he will not be allowed to follow P or IG to Uganda if they are removed, with the result that the family life they have established will be severed.

[19]      On 3 February 2014 the respondent wrote to the petitioner asking him to provide evidence of the family and private life he has established with P and IG.  The petitioner replied.  On 1 April 2014 the respondent replied treating what had been said on behalf of the petitioner as a fresh claim for infringement of his Article 8 rights (No. 6/4).

[20]      Solicitors previously acting for the petitioner subsequently intimated on his behalf an intention to challenge the respondent’s decision dated 1 April 2014.  On 16 October 2014 the respondent requested these solicitors to make further representations.  On 17 November 2014 the petitioner’s present solicitors did so (No. 6/5) emphasising the importance of the family life the petitioner had established, and submitting that this information amounted to a fresh claim that his Article 8 ECHR rights would be infringed if he was removed from the UK.

[21]      On 5 February 2015 the respondent replied.  She rejected these submissions (No. 6/1).

[22]      The current guidelines in relation to considering further information following a failed asylum claim and whether this consists of a fresh human rights or asylum claim are contained in paragraph 353 of the Immigration Rules (HC 395) which states:-

“When a human rights or an asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and if rejected will then determine whether they amount to a fresh claim.  The submissions will amount to a fresh claim (i) 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”.

 

[23]      Article 8 of the European Convention on Human Rights (“ECHR”) provides that:

“(1)      Everyone has the right to respect for his private and family life, his home and his correspondence.

(2)        There shall be no interference by a public authority with the exercise of this right in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals and for the protection of the rights and freedoms of others”.

 

[24]      The petitioner contended that in reaching the decision dated 6 February 2015 rejecting the submissions of the petitioner’s solicitors that further information amounted to a fresh claim for infringement of the petitioner’s Article 8 rights, the respondent erred in law and has acted irrationally.

[25]      In particular the respondent had erred in relation to the question of “realistic prospects of success”.  She has not properly considered whether there are realistic prospects of success before another judge.  The test is not whether the claim would succeed before her, but before another immigration judge, taking into account anxious scrutiny (WM (DRC) v Secretary of State for the Home Department (2007) Imm AR 307).  The respondent refers to the relevant provision in the Immigration Rules (see paragraph 3 in the decision letter).  The respondent may have reached the view that a fresh claim falls to be rejected, but no consideration at all in the letter is given to whether another judge might so find.  The test set out in WM (see above) is not considered in the decision letter.  The task before the respondent was to consider whether there was a realistic prospect of success before another judge.  She has failed to do so or failed to do so properly.  In so failing she has erred in law.

[26]      The respondent has considered and rejected the petitioner’s claims under the Immigration Rules that removal would disproportionately interfere with his Article 8 family and private life rights (paragraphs  7-37  of No. 6/1).  No challenge is made to these considerations.

[27]      The respondent then (from paragraphs 38-58 of No. 6/1) considers whether there are any exceptional circumstances which might warrant a grant of leave to remain outwith the Immigration Rules and concludes there are not.  In so doing she has erred in law.  The test for considering whether Article 8 is infringed, in circumstances where the petitioner is married and there is a child, is whether removal would be proportionate (Mirza v Secretary of State for the Home Department (2015) CSIH 28).  The respondent has not addressed the issue of proportionality in this section of her decision.  In particular she has left out of account in her discussion of the Article 8 situation any difficulties likely to be encountered by the fact that the petitioner is from Nigeria and would be returned there while P is from Uganda to where she might be returned and the consequent difficulties of maintaining family life with IG outwith the UK.

[28]      The petitioner’s plea-in-law is that:

“The respondent or those for whom she is responsible having erred in law in reaching the decision dated 6 February 2015 to reject the submissions of the petitioner’s solicitors that further information amounted to a fresh claim, the decision should be reduced as sought.”

 

The respondent’s Answers
[29]      The respondent referred me to the decision dated 6 February 2015 (No. 6/1), the letter of 24 August (No. 6/2) and the letter of 25 August 2015 (No. 6/3) for their whole terms.

[30]      It was explained that the petitioner has remained in the United Kingdom unlawfully since his visa expired in 2005.  When arrested he gave false identity details.

[31]      It was admitted that on 30 March 2013 the petitioner married PN;  that she is a national of Uganda;  that on 26 May 2013 P gave birth to their child, IG;  that a separate claim by P for asylum and breach of human rights was rejected;  and that a fresh claim by her was also rejected by the respondent on 1 April 2014. 

[32]      It was averred that the petitioner had produced no evidence to the respondent to the effect that he feared he would not be allowed to follow P or IG to Uganda.

[33]      On 3 February 2014 the respondent wrote to the petitioner asking him to provide evidence of the family and private life he had established with P and IG.  The petitioner replied.  The respondent decided that the petitioner’s removal from the United Kingdom remained appropriate and that the petitioner’s further representations did not amount to a fresh claim.  In so deciding the respondent observed, as was the case, that the petitioner had attempted to evade immigration control by providing a false identity and had taken employment in the United Kingdom when he had no permission so to do during the period 2004 to 2009 and as such had acted unlawfully.  Reference was made to paragraph 32 of the decision letter of 1 April 2014.

[34]      The respondent considered whether the petitioner’s further representations, when considered with the previously considered material, created a realistic prospect of success notwithstanding its rejection.  Reference was made to inter alia paragraphs. 37, 58, 72 and 73 of the decision letter.  The respondent reached a view she was entitled to reach. 

[35]      In any event, esto the respondent failed to consider whether the material presented a realistic prospect of success in the decision letter of 6 February 2015, she did so in response to the pre-action protocol letter in her decision letter of 25 August 2015.  A v Secretary of State for the Home Department 2015 SLT 306 at [27].  The order sought for reduction was unnecessary.

[36]      The petitioner does not challenge the respondent’s decision that under the Immigration Rules the petitioner’s removal would not disproportionately interfere with the petitioner’s Article 8 ECHR family and private life rights. 

[37]      The respondent had regard to relevant considerations.  She reached a view she was entitled to reach.  She gave adequate reasons for her decision.  The respondent’s assessment of the petitioner’s circumstances outwith the Immigration Rules was an assessment of the proportionality of removal.  The petitioner’s private and family life after the expiry of his visa in 2005 has been established precariously whilst the petitioner has been in the United Kingdom unlawfully.  It is only in exceptional circumstances that removal of an applicant is likely tip the proportionality balance in favour of an applicant.  Butt v Secretary of State for the Home Department [2015] CSIH 72 per Lady Smith at paragraph [18] and  Jeunesse v Netherlands (2015) 60 EHRR 17 at section 108. 

[38]      The respondent considered the petitioner’s circumstances adequately, having already concluded, in a manner accepted by the petitioner as lawful, (including the relevance of the absence of insurmountable obstacles to family life continuing outside the United Kingdom and the relevance of the absence of very significant obstacles to the petitioner’s integration into Nigeria) that the petitioner was not entitled to leave in terms of the Immigration Rules.  That assessment included the assessment of the Article 8 rights of the petitioner, his spouse and the child, woven with the Immigration Rules.  The respondent reached a view she was entitled to reach. 

[39]      In any event, any error on the part of the respondent was and is not material.  The petitioner’s circumstances did not give rise to a realistic prospect of success. 

[40]      Further and in any event any reconsideration of the petitioner’s circumstances would require the decision maker to have regard to Part 5A, Nationality Immigration and Asylum Act 2002 (as amended).  In the light of those considerations, the petitioner’s circumstances do not give rise to a realistic prospect of success.

[41]      The respondent’s pleas-in-law were as follows, namely:

1.         The petitioner’s averments being irrelevant, et separatim, lacking in specification, the petition should be dismissed.

2.         The petitioner’s averments, so far as material, being unfounded in fact, the orders sought should be refused.

3.         The respondent not having materially erred in law in reaching the decision dated 6 February 2014, the orders sought should be refused.

4.         In any event, the respondent having considered prospects of success in her letter of 25 August 2015, the orders sought should be refused as unnecessary.

 

Discussion
[42]      The main issue separating parties was whether the respondent in reaching the decision in her letter dated 6 February 2015 (No. 6/1) erred in law in rejecting the submissions of the petitioner that further information amounted to a fresh claim for breach of his Article 8 ECHR rights because there were no realistic prospects of a fresh claim succeeding before another judge.  That involved considering:

• whether the respondent has correctly applied the test of realistic prospects of success and whether she was entitled to conclude that another judge would reach the same view as she does;
• whether the respondent has considered properly the proportionality of any proposed removal of the petitioner;
• whether the respondent in considering the issue of exceptional circumstances outwith the Immigration Rules has considered whether removal of the petitioner would be proportionate, having regard to the positions of P (his wife and IG (his son).

[43]      The petitioner is a citizen of Nigeria who has remained in the United Kingdom unlawfully since his visa expired in 2005 and who, whilst here, has sought to evade immigration control by providing false information and has worked unlawfully.  In 2013 he married a national of Uganda, who is a failed asylum seeker, whilst in the United Kingdom.  Together they have an infant child.  On 17 November 2014 the respondent made further representations to the respondent.  On 6 February 2015 the respondent determined that the petitioner’s further representations did not amount to a fresh claim.  The petitioner challenges that decision.

[44]      I have taken into account the petitioner’s criticisms of the decisions under challenge but, bearing in mind the whole terms of the decision, I am satisfied that those criticisms are not well founded.  The respondent refers to the relevant provisions in the Immigration Rules.  The test was whether there were realistic prospects of success before another judge taking into account anxious scrutiny.  The respondent also considered whether leave to remain should be granted outwith the Immigration Rules.  The test was whether removal would be proportionate.  Those issues are adequately addressed in the decision letter (No. 6/1 of Process) which has already been referred to for its whole terms.  See inter alia paragraphs 3, 28, 29, 32, 36 to 58, 72 and 73.  In the circumstances, the respondent reached views which she was entitled to reach.

[45]      The authorities referred to (above) also support the respondent’s position. 

See in particular Ashiq v Secretary of State for the Home Department 2015 SC 602, particularly at paragraph [5];  SB, Petitioner [2015] CSIH 72, paragraphs [27] to [32], and [39]; and Jeunesse v Netherlands (2015) 60 EHRR 17 paragraphs 107 and 108.

[46]      In the whole circumstances, I have reached the following conclusions, namely:

• that the respondent applied the correct test (realistic prospects of success) in considering whether the petitioner’s further representations amounted to a fresh claim;
• that the respondent did not err in law when considering the petitioner’s Article 8 rights outwith the Immigration Rules; and
• that the respondent did not reach an irrational decision on the existence of a fresh claim.

[47]      In short, I can detect no material error on the part of the respondent.

 

Conclusions

[48]      In the whole circumstances, having regard to the submissions of counsel, the documents before me and the authorities produced, I am satisfied that the decision complained of was neither unreasonable nor unlawful.  The respondent’s submissions are well founded.  There had been no material error of law on the part of the respondent.  The orders sought should be refused.

 

Decision

[49]      Accordingly, I shall sustain the respondent’s third and fourth pleas-in-law, repel the petitioner’s plea-in-law and refuse the orders sought in the petition.

[50]      I shall reserve meantime the question of expenses.