Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 2

P643/15

OPINION OF LORD ARMSTRONG

In the Petition of

MODOU LAMIN COLLEY (AP)

Petitioner;

for Judicial Review of decisions of the Secretary of State for the Home Department,

dated 6 and 18 May 2015

Petitioner:  Forrest;  Drummond Miller LLP

Respondent:  Gill;  Office of the Advocate General

12 January 2016

Introduction
[1]        The petitioner is a national of Gambia.  He arrived in the United Kingdom on 24 September 2005 with a four year student visa.  On its expiry, his applications for leave to remain were refused in 2009 and 2010.  On 27 April 2015 he was encountered at his home address and thereafter detained.  The respondent is the Secretary of State for the Home Department.

[2]        On 6 May 2015, the respondent refused an application by the petitioner for leave to remain on the basis that he had established a family life in the United Kingdom and that in particular he had been in a relationship with his partner since 2012 and that they had established a family and private life together.  The respondent also certified the claim within the application as being clearly unfounded in terms of section 94 of the Nationality, Immigration and Asylum Act 2002. 

[3]        Thereafter, the petitioner submitted further information which he requested to be considered as a fresh application on ECHR article 8 grounds.  On 18 May 2015, the respondent refused to accept the further representations as a fresh claim and upheld her decision to certify the claim as clearly unfounded.

[4]        The petitioner seeks reduction of these two decisions on the basis that they are irrational and, in particular that, in each case, the wrong test was applied. 

[5]        The petitioner had previously sought the same remedy in respect of removal directions dated 21 May 2015, but, given the cancellation of the directions on 22 June 2015, it was conceded at the first hearing that, in that regard, reduction was no longer necessary.

The submissions for the petitioner
[6]        Despite the fact of an express statutory right of appeal in respect of the rejection of the petitioner’s application for leave to remain, which rejection comprised part of the decision of 6 May 2015, it was submitted that judicial review remained open to the petitioner in that regard and was not excluded or rendered incompetent by reason of there being an alternative statutory remedy.  Emphasis was placed on the contention that since the matter concerned a human rights claim, the case was one of a different category of fact from cases of other types which would be rendered not susceptible to judicial review by the existence of a right of appeal.

[7]        Reference was made to R (Ali and Mehmood) v Secretary of State for the Home Department [2015] EWCA Civ 744.  That case concerned the issue of whether there were sufficient “special and exceptional factors” such as to allow judicial review in respect of decisions which were otherwise challengeable by appeal.  At paragraph 50, Lord Justice Beatson described the application of the principle, that where there is an alternative statutory appeal it is only when there are “special or exceptional factors” that judicial review should be exercised, as a fact–sensitive question.

[8]        It was emphasised that appeal from outwith the United Kingdom, consequent on the operation of section 94 of the 2002 Act, was a less effective remedy than an in-country review.

[9]        It was recognised that the decision in MDMH (Bangladesh) v Secretary of State for the Home Department [2014] CSOH 143 was authority for the proposition that where a right of appeal from abroad had not been adopted, a petition for judicial review could be dismissed as incompetent.  Nevertheless, under reference to the decision in R (Lim) v Secretary of State for the Home Department [2007] EWCA Civ 733, at paragraph 22, it was submitted that it was a coherent approach to allow judicial review in such circumstances, where the proper exercise of judicial discretion to allow it, having regard to the nature of the issue concerned, was appropriate.

[10]      There were special and exceptional factors in the present case.  The issues raised concerned human rights, which had not been the case in MDMH (Bangladesh).  In the present case, there was a need for anxious scrutiny.  Reference was made to WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, at paragraph 7.  In these circumstances, the matters raised were sufficiently important that, notwithstanding the right of appeal, the court should be slow to sustain a plea to the competency of the remedy sought.

[11]      In respect of the merits of the challenges made, there were two issues to be considered.

[12]      The first was that in certifying the petitioner’s claim as clearly unfounded, the respondent had erred by applying the wrong test.  In relation to the content of the decision of 6 May 2015, paragraphs 1-10 were to be viewed as being introductory and paragraphs 11‑36 set out the respondent’s consideration of the claim that removal would interfere with the petitioner’s human rights to a disproportionate degree.  It was accepted that the petitioner’s claim could not proceed on a consideration under the Immigration Rules.

[13]      From paragraph 37 onwards, the respondent had considered whether, separately or as part of what she had already considered, ECHR article 8 issues gave rise to any exceptional factor sufficient to warrant the exercise of discretion outwith the Immigration Rules.  It was submitted that, in that respect, the respondent had applied the wrong test.  The test which should have been applied was whether there might be a good arguable case of disproportionality if leave to remain was not granted (MS v Secretary of State for the Home Department [2013] CSIH 52, at paragraphs 7, 28).  In the referable part of the decision of 6 May 2015, that test had not been applied.  In consequence, a constituent element of the petitioner’s case had not been considered in determining whether there was such an arguable case.

[14]      In Mirza v Secretary of State for the Home Department [2015] CSIH 28, the court recognised that a spouse’s rights of residence in the UK, and all that went with it, including the benefits of citizenship, might weigh heavily in the assessment of proportionality (paragraphs 4, 6, 16–19, 21).  The facts of the petitioner’s case were such that consideration ought to have been given to that issue.

[15]      It was accepted that there was a legitimate objective in maintaining immigration control, but nevertheless, in what could be described as possibly an example of a fraught exercise of discretion, the wrong test had been applied.

[16]      In this respect, the decisions of 6 and 18 May were to be regarded as determinative of what in effect was the same claim.  Accordingly, the submission in respect of failure to apply the correct test applied equally to both.

[17]      Secondly, in relation to the claim of 18 May 2015, in certifying the petitioner’s claim as clearly unfounded, the respondent had failed to consider two significant matters which she should have taken into account.  These matters were (1) that although petitioner’s relationship with his partner did not qualify under the Immigration Rules as a genuine and subsisting one, the new information, provided following the decision of 6 May 2015, was apt to justify such a description, and (2) that the petitioner’s partner had settled status within the United Kingdom as a refugee who could not return to her country of origin, that is to say Gambia.  She had leave to remain until 20 January 2019.  That being so, the petitioner was in a position similar to that of the appellant in MS, whose partner had been a citizen of the United Kingdom.

[18]      Amongst the information which had been submitted following the decision of 6 May 2015, was a letter by the petitioner’s partner, dated 1 May 2015, attached to which was a photocopy of her passport which bore to indicate her refugee status and leave to remain.  Also produced was a letter from the Home Office addressed to the petitioner, and dated 1 May 2015, which confirmed the outcome of an investigation into the petitioner’s proposed marriage to his partner.  It was submitted that the existence of that letter and its content was an indication of the serious nature of the petitioner’s relationship with a woman who was unable to return to Gambia.

[19]      In her decision dated 18 May 2015, the respondent had rejected the petitioner’s claim notwithstanding that further information.  At paragraph 9, the respondent indicated that the latest evidence submitted was not considered to be independent evidence sufficient to confirm that the relationship was genuine and subsisting.  It was submitted that the respondent’s assessment ignored the clear indication of an intention to marry and made no reference to the refugee status of the petitioner’s partner.  Had these factors been taken into account, it would have been clear that removal would be unjustifiably harsh and disproportionate.  On that basis, the respondent had not been entitled to reach the conclusion that there was no fresh claim.  Similarly, the respondent had not been entitled to determine that the petitioner’s claim was clearly unfounded.  In circumstances where a claim which is clearly unfounded was to be equated with one which had no realistic prospects of success (ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6), the respondent’s decision to certify the petitioner’s claim, given the import of the newly available evidence, had been irrational.

The submissions for the respondent
[20]      There were preliminary matters of competency which arose in relation to the decision of 6 May 2015.  In effect, that decision had comprised two separate decisions, the first being the rejection of the application for leave to remain, and the second being the certification of the claim as clearly unfounded.

[21]      In so far as the first part the decision of 6 May 2015 was concerned, there was an express statutory right of appeal.  That right applied regardless of whether or not the referable claim involved consideration of human rights.  That was entirely consistent with the parliamentary intention behind the Immigration Act 2014 which had implemented the change to the relevant appeals structure.

[22]      As to whether the existence of special or exceptional circumstances could be a factor in determining whether judicial review was an available remedy, where there remained an unexhausted right of appeal, in the petitioner’s case the matters which were said to constitute such exceptional circumstances were the very matters which were the issue for determination, and so accordingly, could not themselves be determinative of whether judicial review in such circumstances was appropriate.

[23]      In any event, the matter had been fully considered in MDMH (Bangladesh) [2014] CSOH 143 (at paragraphs 13, 22, 24, 29, 33, 34 and 37–39) and was properly to be recognised, in Scotland, as a matter of competency in respect of which, in the absence of special or exceptional circumstances, the court had no discretion.  Where a statutory right of appeal existed, in such circumstances, there was no scope for judicial review.  On that basis, the petition, in so far as it was directed to the first part of the decision of 6 May 2015 was incompetent.

[24]      In so far as the second part of that decision was concerned, the certification of the petitioner’s claim as clearly unfounded had been superseded by the development of subsequent events.  Following the decision of 6 May 2015, additional submissions had been made in relation to the same underlying question of whether or not the petitioner’s claim was clearly unfounded.  These submissions, which created in effect a developed version of the original claim, and therefore a new and different claim, had been considered on 18 May 2015 when the certification had been maintained.  The certification of 6 May 2015 having been superseded by that of 18 May 2015, reduction of the certification of 6 May 2015 was unnecessary and therefore incompetent. 

[25]      In any event, in relation to the decision of 6 May 2015, there had been no error of law in respect of the test applied in determining that the claim was clearly unfounded.  Following a thorough review of the available evidence (in paragraphs 37–42) the respondent had expressed her conclusion in terms referable to the test approved in MS, in other words that, in the petitioner’s case, there were no genuinely exceptional or compelling compassionate circumstances that might render his removal unjustifiably harsh or disproportionate (paragraph 44).  That being so, it was reasonable to infer that having considered all relevant factors and having reached that conclusion, that test was the test which she had applied.

[26]      Separately, in so far as the impact of the petitioner’s relationship was concerned, where consideration of article 8 issues outwith the Immigration Rules was required, it was appropriate to have regard to, and place particular weight on, the precarious nature of an applicant’s immigration status at the time of his marriage.  Nor was it necessarily disproportionate for a spouse to be required to leave the United Kingdom (A v Secretary of State for the Home Department [2015] CSIH 31, at paragraphs 2, 4, 5, 24).  In any article 8 proportionality assessment, there were no fixed lines.  Rather what was required in each case was a careful evaluative exercise, on the particular facts and circumstances in question (Butt v Secretary of State for the Home Department [2015] CSIH 72, per Lord Eassie at paragraph 7;  per Lady Smith at paragraphs 18, 26-29, 44).

[27]      Paragraph 43 of the decision was consistent with that approach and was plain in its terms.  The conclusion reached was that the petitioner’s circumstances were not genuinely exceptional and that the application was not distinguishable from those family and private life applications which would normally fall to be refused under the Immigration Rules.  In such circumstances, it was unnecessary for the respondent, in considering the position outwith the Immigration Rules, “to go through it all again” in circumstances where all the relevant issues had already been considered in the consideration under the rules (A v Secretary of State for the Home Department at paragraph 5).  That being so, the assessment made at paragraph 43 had been a proper basis for the conclusion, at paragraph 44, to the effect that removal would not be disproportionate. 

[28]      In so far as the decision of 18 May 2015 was concerned, no error of law had arisen.  The application which resulted in the decision was a classic example of a further submission requesting consideration as a fresh claim in circumstances where there had been  previous certification in terms of section 94 of the 2002 Act (ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348, at paragraphs 17 and 18).  As in ZT (Kosovo), it made no difference whether a section 94 consideration was carried out or whether the procedure of rule 353 of the Immigration Rules was applied.  That was accepted on behalf of the petitioner.  The respondent had considered the submission and had determined whether she accepted or rejected the further submissions (paragraphs 7-18 of the decision letter).  Thereafter she had considered whether the claim had a realistic prospect of success, and having found that it did not, she maintained the certification of the claim as clearly unfounded.  The methodology of the respondent’s assessment of the petitioner’s claim had been correct.

[29]      The decision had been made on the basis of the information before the respondent.  In considering the evidential value of the letters submitted in support of the petitioner’s application, it was necessary to assess them at face value.  As a matter of fact, as noted by the respondent, there was a lack of documentation in support of the assertions made by and on behalf of the petitioner.  It could not be said that the decision was unreasonable because it failed to take due account of the petitioner’s relationship when the nature of the petitioner’s relationship was what the respondent had been called upon to determine, and had in fact determined.

Decision

[30]      In relation to the decision of 6 May 2015, and in particular for the reasons set out in the decision of MDMH (Bangladesh), I am satisfied that in circumstances where there remains an unexhausted statutory right of appeal, judicial review is not competent unless there exist special or exceptional circumstances which operate to exclude that general principle.  In the present case I am satisfied that there are no such special or exceptional circumstances.  Given the parliamentary intention behind the legislation which brought about the right of appeal, and the terms of the relevant provisions, the fact that the case involves a human rights claim is not on its own sufficient to merit such characterisation and neither is the fact that there may be difficulties encountered in advancing an out of country appeal.  That being so, judicial review of the respondent’s rejection of the petitioner’s application for leave to remain, by the decision dated 6 May 2015, is not competent.

[31]      As regards the certification of the petitioner’s claim in terms of section 94 of the 2002 Act, which comprised the second part of the decision of 6 May 2015, I am persuaded that reduction of it is unnecessary, given the subsequent application seeking further representations to be treated as a fresh claim and the resulting decision of 18 May 2015.  In these circumstances, that part of the decision of 6 May 2015 has been superseded.  I confirm that, in any event, in respect of the competing analyses of that part of the decision of 6 May 2015, I was persuaded by the submissions for the respondent and, had it been necessary to do so, would have found there to have been no error of law or irrationality in the manner of its making.

[32]      As regards the decision of 18 May 2015, for the reasons submitted on the respondent’s behalf, I am satisfied that the petitioner’s challenge must fail.  On a proper reading of the decision letter, it is clear that the correct tests were applied (see paragraphs 18, 20, 26, 28).  The respondent took into account the further representations and supporting documentation submitted on the petitioner’s behalf.  In determining what weight to attach to that evidence, the precarious nature of the petitioner’s immigration status was a legitimate factor for consideration.  In the context of a careful evaluative exercise directed to all material facts and circumstances, the immigration status of the petitioner’s partner could not, of itself, have been determinative.  I find therefore that in assessing the further submission made, the respondent was entitled to reach the conclusions which she did and, further, that her determination that the claim had no real prospects of success was made on a rational and proper basis.

Conclusion
[33]      For these reasons, I shall sustain the second, third and fifth pleas in law for the respondent, repel the second and third pleas in law for the petitioner, and refuse the petition.  I reserve, meantime, all questions of expenses.