Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 29

P684/15

OPINION OF LORD ARMSTRONG

In the Petition of

B O (AP)

Petitioner;

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

dated 7 June 2015

Respondent:

Petitioner:  Forrest; Drummond Miller LLP

Respondent:  Webster; Office of the Advocate General

17 February 2016

Introduction

[1]        The petitioner is a national of Turkey.  The respondent is the Secretary of State for the Home Department.  The petitioner entered the United Kingdom on 24 May 2000 and, despite numerous applications, was never granted a residence permit or leave to remain in the United Kingdom.  He was detained on 18 May 2015.  On 7 June 2015, the respondent rejected an application by the petitioner for leave to remain.  On 17 June 2015, removal directions were issued in respect of the petitioner but, in the event, his removal did not take place following presentation of the present petition.  The petitioner seeks reduction of the decision dated 7 June 2015 (“the Decision”).  It was conceded, on the petitioner’s behalf, that reduction of the removal directions, dated 17 June 2015, was no longer necessary. 

The facts
[2]        In October 1999, the petitioner married EC in Turkey.  Following their move to Northern Ireland, M, their daughter, was born on 2 November 2000.  In 2001 the petitioner and his wife separated.  The petitioner moved to Edinburgh where he continued to live, and his wife and daughter continued to live in Northern Ireland.  In 2011, the petitioner and his wife were divorced.  Although he sent money to contribute to M’s upbringing, his former wife did not allow him contact with her.  In about March 2014, the petitioner’s former wife agreed to cooperate in allowing him to have contact with M.  He had contact with her, for the first time since 2011, in December 2014.  He continued to contribute to her financial support.

[3]        On 4 June 2015, following a decision of a First‑tier Tribunal judge, dated 18 February 2014, to refuse an appeal by the petitioner under section 82(1) of the Nationality, Immigration and Asylum Act 2002, the petitioner made an application for leave to remain in terms of Appendix FM of the Immigration Rules, on grounds of his ECHR article 8 right to a family life.  In support of that application, there was submitted (1) a statement by the petitioner, dated 2 June 2015, in which emphasis was placed on the changed situation in relation to his ability to have contact with M, (2) a hand-written letter from his former wife, posted on 10 May 2015, to the effect that M was distressed by the possibility of her father’s deportation and that the petitioner sent £50 per fortnight as a contribution towards her support, and (3) a hand-written letter from M, now aged 15 years, stating that the petitioner had been in regular contact, that he was sending £50 every fortnight and that

“It’s better having him here as I do need his support. …. He’s a really good Dad and I need him here.  Please don’t send him back to Turkey”.      

That application, dated 4 June 2015, was determined by the Decision. 

Submissions for the petitioner
[4]        The criteria which the petitioner required to satisfy in order to be granted limited leave to remain as a parent were set out at Section R-LTRPT of Appendix FM of the Immigration Rules.  In that regard, the issues which arose were (1) whether the petitioner satisfied E-LTRPT 2.4 (a)(ii) (whether he had direct access to the child as agreed with the parent with whom the child normally lives) and 2.4(b) (whether he had provided evidence that he was taking an active role in the child’s upbringing), and (2) whether for the purposes of Section EX1, in its application to E-LTRPT 3.2, the petitioner had a genuine and subsisting relationship with his child.  It was submitted that there was evidence which fulfilled these criteria, provided by the enclosures submitted with the application dated 4 June 2015, and that therefore there was a realistic prospect of success before another immigration judge.

[5]        Reduction of the Decision was sought on the basis (1) that in rejecting the petitioner’s application, no account was taken of the possible effect of the new information submitted, in relation to whether a claim under the immigration rules might succeed, and (2) that inadequate consideration was given to the best interests of his child. 

[6]        Under reference to WM (DRC) v Secretary of State for the Home Department [2007] Imm AR 337, the test which such an application had to meet was a modest one which must be informed by anxious scrutiny (paragraphs 6, 7 and 11). 

[7]        Paragraph 6 of the Decision included the statement that it was not accepted that the new evidence provided any reasons why the petitioner’s contact as it currently stood could not continue on his removal to Turkey.  However, in the context of the applicable test, as to whether the petitioner could be said to have a realistic prospect of success before another immigration judge, that statement betrayed flawed reasoning.  The correct approach was for the respondent to consider whether another immigration judge might take the view that the petitioner had now brought himself within the Immigration Rules.

[8]        In Alibinu v Secretary of State for the Home Department [2015] CSOH 155, a case which concerned the issue of whether the criteria of E-LTRPT 2.4(a) and (b) had been satisfied, the decision in question had been reduced on the basis that the decision-maker, by failing to apply the required anxious scrutiny, had not applied the relevant test correctly.  At paragraph 67, it was stated:

“An immigration judge considering the matter afresh would be considering a family situation where by definition the petitioner did not live with his daughter, but may still take an active role in her upbringing, or whose removal might in any event be contrary to her best interests.  An immigration judge might decide that there was a genuine and subsisting relationship, even if it could not be described as one in which the petitioner took an active role in C’s upbringing.  In any event it may be difficult to find that such a relationship does not have an effect on the child.  Therefore if there is a relationship that in itself may be argued to amount to an active role in upbringing.”

[9]        As for the need to take the best interests of the child properly into account, the respondent had been wrong to state in the Decision, at paragraphs 8 and 9, (1) that the petitioner’s removal would not adversely impact on the child, and (2) that there was no substantial evidence that he had played any positive role financially.  These statements ignored the content of the letters submitted in support of the application.

[10]      Although in the decision dated 18 February 2014, the issue of the child’s best interests had been touched upon, it had not been fully explored.  Although, at paragraph 17, it had been recognised that the child might suffer disappointment at the prospect of her father moving to Turkey, the emphasis of consideration had been on the petitioner himself rather than on his child.

[11]      Reference was made to ZH (Tanzania) v Secretary of State for the Home Department [2015] 2 AC 166, at paragraphs 23, 29-34.  Not only were the best interests of the child a primary consideration, but it was important to have regard to the child’s own views.  Reference was also made to the relevant legal principles to be applied in such circumstances, as set out at paragraph 10 in the decision of Zoumbas v Secretary of State for the Home Department [2014] SC (UKSC) 75.  In those regards, the content of the relevant paragraphs of the Decision (paragraphs 8 and 9) lacked any proper treatment of the relevant issues. 

Submissions for the respondent
[12]      The application of rule 353 of the Immigration Rules required consideration of whether the new material submitted, taken together with the material previously considered, made any difference to the application such as to create a realistic prospect of success.  There required to be something more than simply a fanciful prospect of success.

[13]      Whether or not there were realistic prospects of success was a question for the respondent to determine on the basis of the information before her.  Although the concept of a hypothetical judge determining whether there was a realistic prospect of success was a helpful discipline in that it emphasised the objectivity which was required, it was no more than a guide and was not a legal formula.  In law, the respondent was standing in her own shoes in deciding the threshold question (YH v Secretary of State for the Home Department [2010] EWCA Civ 116, at paragraphs 15 and 16).

[14]      Against that background, it was only if the exercise of the respondent’s judgment was outwith that of a reasonable decision-maker, that the court should intervene (WM (DRC), at paragraphs 13-15).

[15]      The facts before the respondent were in short compass.  As at June 2015, the petitioner had not seen his daughter since 2011, with the exception of a single occasion in December 2014.  Thus, he and his daughter had met only once in four years, a fact on which the petitioner had relied some six months after the event.  There was no court order entitling the petitioner to contact, and in fact there was no standing agreement as to contact either.  At most, it was apparent from the petitioner’s own statement, submitted with the application, that “(He) would like to be able to see (his) daughter more frequently”. It was significant that the letter by his former wife, made no reference to any agreement in that regard. 

[16]      E-LTRPT 2.4 required an applicant to provide evidence that he was taking “an active role” in the child’s upbringing.  Whether the available evidence did demonstrate that was a matter for the judgment of the decision-maker. 

[17]      The application of EX1 to E-LTRPT 3.2 required an applicant to demonstrate that he had “a genuine and subsisting parental relationship” with the child.  Again that was a matter of inference which fell within the judgment of the decision-maker.  In that regard, the available evidence at the time of the application dated 4 June 2015, and at the time of the Decision, was limited to one instance of physical contact six months previously.  In these circumstances, it had been reasonable to determine that there was insufficient to demonstrate such a relationship.  In such circumstances it would have been reasonable to conclude that no other decision-maker would have taken a different view.

[18]      It was recognised that the petitioner had been contributing financially to the child’s support.  That was noted at paragraph 6 of the Decision and had not been left out of account.  That evidence related to a factual position to be considered in the round, taking into account the totality of the other evidence available, in the exercise of judgment. 

[19]      The respondent had considered the issues under the Immigration Rules and had then gone on to consider whether there were exceptional circumstances to be taken into account in relation to an assessment outwith the rules.  It was recognised in the Decision that there had been developments since the original application before the immigration judge, but the view reached was that the changes were so minor that there was not a sufficient basis for an article 8 claim.  In the whole circumstances it had not been outwith the range of decisions of a reasonable decision-maker to determine that the petitioner’s relationship with his child was not a genuine and subsisting parental relationship.

[20]      In assessing as to whether the child’s best interests had been properly taken into account, it was to be noted that no particular formulation was required so long as it was clear in the relevant decision that the issue had been given appropriate weight as a primary, but not a paramount, consideration (Zoumbas, at paragraph 19).

[21]      What was in the best interests of a child was a question which was fact-sensitive in every case.  It was important to read the decision letter as a whole and to analyse the substance of the decision.  Paragraph 8 of the Decision made specific reference to the best interests of the child and dealt with the substance of the factors to be taken into account.  The respondent had considered what was in the best interests of the child and having accorded the issue appropriate regard had concluded that since the child’s best interests were being met without the petitioner’s input, his removal would not affect that.

[22]      The evidence indicated that there had been no repeated attempts by the petitioner to visit his daughter.  It was recognised that if he chose to do so, it was open to him to travel from Turkey to visit her.  The financial support which he was providing from Edinburgh could just as easily be sent to Northern Ireland from Turkey.

[23]      Against the whole background, the conclusion reached, at paragraph 15 of the Decision, to the effect that the petitioner’s claim did not have reasonable prospects of success before an immigration judge, was entirely reasonable and was reached by applying the correct tests having due regard to the relevant issues arising and the available evidence.  In the circumstances, the court should not intervene.

Decision

[24]      Although there was some discussion in the course of the submissions as to the approach which should be taken in assessing what amounts to a fresh claim in cases such as this, I am satisfied that the test to be employed is whether it could be said of the petitioner’s claim that it would have a realistic prospect of success before another immigration judge.  It is apparent from paragraph 15 of the Decision that the respondent employed that test, and I assess the Decision on that basis.

[25]      In the particular circumstances of this case, it is reasonable to categorise the extent of the new evidence submitted with the application dated 4 June 2015, as being limited.  Although it is quite clear that the petitioner met his daughter in December 2014, for the first time since 2011, the content of his statement is otherwise only aspirational.  Despite the noted change of attitude on the part of his former wife, in early 2014, following the appeal before the immigration judge, there is no evidence that he has made attempts to travel from Edinburgh to Northern Ireland in order to visit his daughter other than on that one occasion. Although the evidence indicated that he provided financial support for his daughter, at the rate of £50 per fortnight, his financial support of her was in place at the time of the hearing in February 2014, as is clear from the decision dated 18 February 2014, and was a factor which had been taken into account by the immigration judge.  While the letter from his former wife places emphasis on the fact and benefits of his financial support of his daughter, it is not eloquent of any other substantive involvement in her life.  Similarly, it is not clear from the terms of his daughter’s letter, given her description of their interaction, on what substantive basis she states:  “I need him here”.

[26]      The case of Alibinu, like all such cases, turned on its own facts.  Although the circumstances of the applicant in that case were broadly similar to those of the petitioner, there were significant differences.  In that case, the evidence of the applicant’s relationship with his daughter, who lived with her mother separately from him, was that he travelled regularly to Nottingham to see her and that she travelled regularly to Scotland to see him.  They saw each other twice a month and he was available for important family events and special occasions.  In addition, the fact that he wrote letters to his other older children was viewed as pointing towards the applicant being a man who took an interest in his family and as therefore being evidence supportive of his relationship with his daughter.  These details allowed Lady Stacey, in applying her analysis of the interaction of the requirements for a genuine and subsisting relationship, on the one hand, and for demonstration of participation in an active role in the child’s upbringing, on the other, to come to the view that, in that case, there was more than a fanciful prospect of success before another immigration judge.  These additional aspects of the evidence in Alibinu are lacking in the petitioner’s case, in particular in circumstances where he and his daughter had met only once in the period between 2011 and June 2015.

[27]      Viewed in the whole context of the matter, I am persuaded by the submissions for the respondent that, in having regard to and employing the correct tests, as I find that the respondent did, the conclusion reached that the petitioner’s claim did not have a realistic prospect of success before an immigration judge, exercising anxious scrutiny (paragraphs 12-15 of the Decision) was a reasonable one.  On the limited evidence available to the respondent, it does appear to me, having due regard to the analysis applied in Alibinu, that consideration of the petitioner’s claim by such a hypothetical judge would not have brought about a different outcome.  I am satisfied that proper consideration was given to what was in the child’s best interests (paragraph 8 of the Decision). Applying the test that what is required is not much more than a fanciful prospect of success, nevertheless, on an objective assessment, the whole facts and circumstances of the petitioner’s case are insufficiently compelling to demonstrate that he was taking an active role in the child’s upbringing or that he has a genuine and subsisting parental relationship with her.  That being so, reduction of the Decision is not appropriate.

Conclusion
[28]      Accordingly, I will sustain the respondent’s second and third pleas in law, repel the petitioner’s first and second pleas in law, and refuse the petition.  I reserve, meantime, all questions of expenses.