Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 174

P478/15

OPINION OF LORD KINCLAVEN

In the petition of

(1) LX for himself and his son RCX (AP) and (2) QYC

Petitioners

against

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Petitioners:  Forrest;  Drummond Miller LLP

Respondent:  Gill;  Office of the Advocate General

13 December 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 20 October 2014 rejecting the petitioners’ claims under Article 8 for leave to remain in the United Kingdom and certifying those claims as clearly unfounded. 

[2]        The issue arising for determination is whether the respondent erred in law in so certifying the petitioners’ claims in terms of Section 94(2) of the Nationality, Immigration and Asylum Act 2002, in that she failed to have proper regard to the best interests of the petitioners’ child, as required by section 55 of the Borders, Citizenship and Immigration Act 2009.

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

Factual Background

[4]        The petitioners are nationals of China, who live together in Scotland with their son, RCX.  It is accepted that the petitioners’ immigration history is accurately set out in the respondent’s decision letter (paragraphs 3 – 13).  The first and second petitioner entered the United Kingdom on 2 October 2005 and 30 March 2006 respectively.  The first petitioner had no right to enter or remain and lodged a claim for asylum as a minor immediately upon his arrival.  His correct year of birth was established from his passport to be 1978, not 1987 as he had claimed.  On 7 November 2005, asylum was refused.  The second petitioner also lodged a claim for asylum immediately upon her arrival.  On 5 April 2006, her application was also refused.  Both petitioners were subsequently served with notices of liability for detention and removal, but both remained in the United Kingdom.  The petitioners’ son, RCX, was born in the United Kingdom on 19 June 2008. 

[5]        On 9 May 2013, the petitioners were encountered working illegally.  On 6 January 2014, the second petitioner lodged further submissions, but her application was refused without right of appeal on 16 April 2014.  Meantime, on 27 March 2014, the first petitioner’s asylum claim was reviewed but the decision was maintained, and no leave was granted.  On 29 September 2014, the respondent issued notices of removal to the petitioners and their son, with a final opportunity for the petitioners to submit any further information that they wished to be considered. 

[6]        On 13 October 2014, solicitors acting for the petitioners submitted to the respondent that the petitioners should be allowed leave to remain in the United Kingdom because, along with RCX, they have established both a private and family life, and any attempt to remove them would amount to a disproportionate interference in their lives. 

[7]        On 20 October 2014, the respondent issued a decision rejecting the petitioners’ claims for breach of their Article 8 ECHR rights, and certifying their claims as clearly unfounded in terms of sections 94(2) and (3) of the 2002 Act. 

[8]        In particular, the respondent addresses RCX’s best interests within the decision letter, principally at paragraphs 32 and 38, but also “fleetingly”, according to the petitioners, in her consideration of the Article 8 claims under the Immigration Rules (paras 18 – 32) and “even less so”, again according to the petitioners, when considering to grant the claims outside of the Rules (paras 35 – 38).  The decision letter, insofar as material, omitting repetition and adding emphasis, records that:

“32. Your client’s child…has therefore spent no more than 6 years in the UK.  He therefore does not meet the eligibility requirements under paragraph 276ADE (iv) of the Immigration Rules.  He would be returning to China as a family unit with his parents.  Your client’s child may be currently enrolled in education in the UK but it is clear from the objective information available that China has a functioning education system which your client’s child would be able to enter.  Your client has not provided any evidence which indicates that they would be unable to maintain his child in China, or that he would be unable to provide for their safety and welfare.

33. Therefore it is considered that your client and his family members return to China would be a lawful and proportionate response to the permissible aim and would not breach the UK’s obligations under Article 8 of the ECHR…

35. We have also taken into account the need to safeguard and promote the welfare of children in the UK in accordance with the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009… 

38. In support of your client’s application you have raised the fact that he has a child aged 6 who has been living in the UK all of their life.  This has been considered, however, your client would be returning to China with their wife and child and he would be able to support them whilst they became used to living there and enjoying their full rights as citizens of China…

42.  In addition, after considering all the evidence available to her, the Secretary of State has decided that your client’s human rights claim is clearly unfounded and hereby certifies it to be so under section 94(2) of the Nationality, Immigration and Asylum Act 2002.”

[9]        The decision being challengeable from within the United Kingdom only by judicial review, the petitioners’ solicitors issued a pre-proceedings letter dated 16 April 2015.  The particular challenge set out in that letter (para 6.2) in terms of section 55 of the 2009 Act was that

“taking the best interest of the child into account means that the decision must be looked at particularly carefully.  Every case turns on its own facts.  The facts here are that the chid is almost 7 years old.  He was born in the UK.  He has never been to China.  In considering his best interests outwith the Immigration Rules, you have not taken into account [his] personal circumstances, his interests, friendships or other relevant relationships.  You have referred generally to objective evidence ‘…that indicates that…’ he could be educated in that country without referring specifically to any particular evidence that indicates that a child in RCX’s situation could be educated there.”

The letter also confirmed (para 6.1) that the same reasons were relied upon in support of the challenge to the certification decision, being the reasons why “it cannot be said that the claim is bound to fail”. 

[10]      On 21 April 2015, the respondent replied adhering to her decision.  In particular, the letter recorded (p 2) that:

“You state that we have not taken into account RCX’s personal circumstances, his friendships, interests or other relevant relationships however, the Secretary of State has been provided with no evidence of the matters to which you refer…

In view of the above, it is not considered that there is any evidence that your clients’ child’s safety or wellbeing has been or will be compromised by the decision to grant your client leave to remain.

Therefore, in light of all of the reasons given above the section 94 certificate is being maintained.  It is considered that the claim is clearly unfounded.”

[11]      The petition and answers are framed, as is the decision letter, under reference to section 94(2) of the 2002 Act. 

[12]      Section 94 of the Act, as founded upon by the parties, provides inter alia that:-

“(2)      A person may not bring an appeal to which this section applies… if the Secretary of State certifies that the claim or claims… is or are clearly unfounded”. 

The Position of the Petitioners

[13]      The petitioners submit that in rejecting their claims for leave to remain under Article 8 ECHR, and taking into account RCX’s best interests, the respondent has erred in law because her decision is irrational.  In short, she has not properly taken into account RCX’s best interests.  He is over 6 years old.  He has established both a private and family life, not only with his parents but also in his own right, which the respondent does not appear to have acknowledged.  The basis of the respondent’s decision was that it was in RCX’s best interests to be with his parents, and if they should be removed then so should he.  This might have been an adequate response with a younger child, but the respondent had to pay greater attention to an older child’s best interests (Azimi-Moayed (Decision affecting children; onward appeals) [2013] UKUT 197 (IAC)), which she had not done. 

[14]      The petitioners complain that the respondent’s treatment in the decision letter of RCX’s best interests (para 32, supra) is “more negative than positive”, and (ibid, and para 38) makes no specific reference to RCX in the context of the education system in China.  Every decision turned on its own facts (EV (Philippines) v Secretary of State for the Home Department (2014) EWCA Civ 774, para 36).  There was no substitute for careful consideration of the facts in the particular case and in relation to the individual child (JO and others (section 55 duty) Nigeria [2014] UKUT 517 (IAC)).  In the present case, it was said (Stat. 7) that “the respondent had failed to look carefully at all the facts in relation to RCX when considering his best interest”, and had thereby erred in law. 

[15]      The petitioners further submit that in certifying the petitioners’ claims as clearly unfounded, the respondent had erred in law as her decision was irrational.  A claim could be certified as clearly unfounded only if the respondent was reasonably and conscientiously satisfied that the claim must fail (R (Yogathas) v Secretary of State for the Home Department [2003] 1 AC 920) or if the claim could not on any legitimate view of the relevant facts succeed (R (L) v Secretary of State for the Home Department [2003] 1 WLR 1230.  The test for satisfaction was accordingly a high one:  it amounted to whether a reasonable decision maker would be satisfied that this claim would be bound to fail or could not on any legitimate view of the relevant facts succeed.

[16]      The relevant facts were that the petitioners had resided in the UK for almost 10 years.  On 19 June 2008, RCX was born.  His best interests were an important consideration (2009 Act, s 55).  The fact that his parents had not been lawfully resident in the UK was another fact that the respondent had been entitled to take into account, but – like RCX’s best interests – it was only a factor that had to be weighed in the balance when considering the petitioners’ Article 8 claims.  The child was not to be held responsible for his parents’ misdeeds (Zoumbas v Secretary of State for the Home Department [2013] 1 WLR 3690, Lord Hodge JSC at para 10(7)).  The petitioners’ conduct could not be regarded as determinative either.  Both were factors to which the respondent was obliged to pay heed.  In certifying the petitioners’ claim as clearly unfounded, and so concluding that they were bound to fail, the respondent had erred by relegating one factor (RCX’s birth and residence in the UK) and elevating another (the petitioners’ immigration history).  In so doing she had erred in law.  At no point has the respondent stated why the claims would be bound to fail.

[17]      All that being so, the petitioner sought reduction of the decision. 

The Respondent’s Position

[18]      The respondent submitted that the petitioners were not entitled to the orders sought and the petition should be refused.

[19]      It was explained that the certification was made under section 94(2) only, and not section 94(3), of the 2002 Act.  The respondent had made no error of law in her consideration of the best interests of the petitioners’ child.  In the decision letter (paras 32, 35 and 38, supra), she had concluded, first, that the petitioners and the child had not established a family life in the United Kingdom within the meaning of Appendix FM, or a private life under paragraph 276ADE, of the Immigration Rules.  She had considered separately whether the application raised any exceptional circumstances which, consistent with Article 8 rights, might warrant consideration of a grant of leave to remain outside the requirements of the Rules.  In that separate consideration, she had specifically taken into account her duty under section 55 of the 2009 Act, and had fully taken account of the best interests of the petitioners’ child. 

[20]      As a starting point, it was in the best interests of the child to be with both parents, and if both parents were being removed from the United Kingdom then the starting point suggested that so, too, should dependent children who form part of the household, unless there are reasons to the contrary (Azimi-Moayed and other (decisions affecting children; onward appeals) (supra) [2013] UKUT 00197 (IAC)).  The respondent had specifically noted that the first petitioner had “not provided any evidence which indicates that they would be unable to maintain his child in China, or that he would be unable to provide for their safety and welfare”.  She had given full consideration to all the facts relating to the child, which had been put before her for consideration.  The evidence gave no hint of a suggestion that the welfare of the child was threatened by the immigration decision in question.  There was no basis for any further exploration or decision on the matter.

[21]      The respondent had made no error in law in certifying the petitioners’ claim as clearly unfounded under section 94(2) of the 2002 Act.  The respondent had not treated the petitioners’ immigration history as determinative of their claim, or of her decision to certify it as clearly unfounded.  She had made clear that she had reached the conclusion that the claim was clearly unfounded “after considering all the evidence available to her” (para 42, supra).  That was a conclusion that she had been fully entitled to reach.  It was not irrational. 

[22]      The respondent’s primary submission, in line with her first plea-in-law, was that she had not erred in law, and that the petition should be refused.  The respondent did not insist on her second or third pleas-in-law.

Decision

[23]      It may be observed in limine that the respondent’s decision letter follows a clear and ordered structure over some 9 pages, and demonstrates a thorough and detailed consideration of the circumstances of the petitioners and their child, insofar as this is possible on the information available.  There is no reason to doubt that the decision was based on all available evidence.  In any event, aside from the general assertion that the respondent did not properly taken RCX’s best interests into account, only two specific grounds of challenge are advanced by the petitioners in this particular regard.  First, that  the respondent appeared not to have acknowledged the existence of RCX’s private and family life, with his parents and in his own right, and had instead assumed his best interests would be served by removal from the United Kingdom along with his parents.  Secondly, that the respondent appeared not to have considered the suitability of the education system in China to meeting the needs of the child, RCX, in particular. 

[24]      Whilst general, and no doubt uncontroversial, statements may be made regarding the importance of careful consideration of the facts and circumstances of the individual child, the crucial fact remains that, in this case, the petitioners have failed to identify any relevant facts about which the respondent was provided with information, and which she failed properly to take into account.  The respondent does not perform an inquisitorial function, and she cannot be expected to do so.  She is entitled to assume that applicants, such as the petitioners, will provide her with all and any information that might be supportive of their position, and to rely upon it as the complete grounds of the application, at least at the time it is made (see e.g. Kosenko, Petr [2015] CSOH 72; c.f. JO and others (section 55 duty) Nigeria [2014] UKUT 517 (IAC) at [14]).  That being so, there is no discernible failure on the part of the respondent to take account of factors relevant to her assessment of the best interests of the petitioners’ child, RCX, as suggested by the petitioners.    

[25]      In a similar vein, the petitioners offer no basis upon which it might be said that the respondent was not entitled to be satisfied that the claims were clearly unfounded in terms of section 94 of the Nationality, Immigration and Asylum Act 2002.  Again, general principles are stated with regard to the applicable standards, but without specification as to their relevance or the manner in which they might not have been met.  There is no suggestion on the face of the decision letter that the respondent held the child responsible for the misdeeds of his parents, nor that the petitioners’ conduct was determinative of the child’s best interests or that the respondent failed to have regard to either of these matters.  Ultimately, the petitioners’ single complaint of any specificity is that the respondent unduly diminished the importance of the child’s birth and long-term residence in the UK, and unduly emphasised his parents’ immigration history.  There is no basis for such an assertion upon consideration of the terms of the decision letter, and none is suggested by the petitioners. 

[26]      I do not accept the petitioners’ assertion that the respondent did not state why the claims would be bound to fail.  It is plain from the face of the decision letter that, no evidence having been supplied to the contrary, the respondent was entitled to reach the decision that she did on the basis of the information before her.  It was, in particular, legitimate to assess the best interests of the child in the context of the whole family unit (W v Secretary of State for the Home Department 2015 SLT 332 at 337), and to recognise that the interests of young children are almost invariably to be with their parents, and if the parents are to be removed from the United Kingdom the primacy of the family unit means that the children should go with them in the absence of reasons to the contrary (ibid).  In the present case, the respondent was provided with no material upon which it could be determined, on any legitimate view, that the contrary position should prevail in the face of removal of the child’s parents from the United Kingdom.  That being so, no serious question arises as to whether the respondent was entitled to certify the petitioners’ claims as clearly unfounded.

Disposal

[27]      In the whole circumstances, having regard to the submissions of counsel, the documents before me, and the authorities produced, I am satisfied that the respondent has not erred in law in her decision of 20 October 2014.  Accordingly, I shall sustain the respondent’s first plea-in-law, repel the petitioner’s plea-in-law and refuse the orders sought in the petition.

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