Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 46

P54/15

OPINION OF LORD PHILIP

In the petition of

CH (AP)

Petitioner;

against

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

to certify her decision not to revoke a deportation order made against the petitioner

Respondent :

Petitioner:  Caskie;  Drummond Miller LLP

Respondent:  Pirie;  Office of the Advocate General

24 March 2016

[1]        In this petition the petitioner seeks judicial review of a decision of the respondent, the Secretary of State for the Home Department, dated 11 December 2014, to certify the petitioner’s human rights claim in terms of section 94B of the Nationality, Immigration and Asylum Act 2002.  Section 94B was added to the 2002 Act by section 17(3) of the Immigration Act 2014 to introduce a discretionary certification power in relation to human rights claims made by persons liable to deportation under sections 3(5)(a) and 3(5)(b) of the Immigration Act 1971.  It allows claims to be certified where the appeal process has not yet begun or is not yet exhausted where the removal of the deportee would not be unlawful under section 6 of the Human Rights Act 1998, where the deportee would not face a real risk of serious irreversible harm if removed to the country of return.  The effect of certification is that the deportee is prevented from appealing against the respondent’s decision to refuse to revoke his deportation order whilst he remains in the United Kingdom.

[2]        The petitioner is a citizen of Jamaica.  He first entered the United Kingdom on 25 November 2002 on a visit visa valid until 25 May 2003.  He overstayed his visa and on 9 July 2004 was arrested on charges relating to the supply of drugs.  On 10 July he was served with an enforcement notice by IS151A on the basis that he had overstayed his visa. On 13 July 2004, he was convicted of possession of a class C drug and fined £100.  On 16 October 2004 he married his wife, who is a British citizen.

[3]        On 23 September 2008 he was detained by Immigration officers.  On the following day, 24 September 2008 he lodged a Further Leave to Remain Marriage (FLRM) application.  On 25 September 2008 he was released from immigration detention.  On 15 October 2008 his FLRM application was rejected and on 20 October 2008 he lodged a further FLRM application which was refused on 22 June 2009 with no right of appeal.  On 22 September 2009 the Home Office was notified that the petitioner wished to return to Jamaica on 11 December 2009.  On 2 November 2009 the petitioner was convicted of two minor road traffic offences and an attempt to pervert the course of justice.  He was fined a total of £385, his licence was endorsed and he was disqualified from driving for six months.  He failed to leave the United Kingdom on 11 December 2009 but  is believed to have left on 23 February 2010.  On 1 April 2010 while in Jamaica he submitted an application for a spouse visa.  A spouse visa was issued on 27 April 2010 which was valid until 27 July 2012.  On 20 June 2010 he returned to the United Kingdom and on 4 September 2010 was convicted of possessing a class B drug for which he was fined £50, and for driving offences for which he was fined, his licence was endorsed and he was disqualified from driving for a period of 12 months.

[4]        On 5 July 2012 the petitioner applied for indefinite leave to remain on the basis of his marriage to a person settled in the United Kingdom.  On 22 May 2013 he was convicted at Aberdeen Sheriff Court of being concerned in the supply of a class A drug, cocaine, for which he received a prison sentence of 30 months.  He was also convicted of possession of a class B drug for which he received a 6 month concurrent sentence.  On 9 July 2013 he was sent form ICD0350 notifying him of his liability to deportation.  On 27 November 2013 the Home Office was informed that he had a child in the United Kingdom. 

[5]        On 28 January 2014 the petitioner was served with a deportation order.  On 2 July 2014 his appeal to the First-tier tribunal against the deportation order was dismissed.  On 29 July 2014 his application for Permission to Appeal to the First-tier tribunal was refused.  On 8 August 2014 he became Appeal Rights Exhausted.  On 21 August 2014 he completed his custodial sentence but was held in immigration detention.  On 23 September 2014 he submitted a request for revocation of the deportation order.  On 11 December 2014 that request was refused and the certification of which he now seeks review was made.

[6]        The petitioner has a son who was born on 3 April 2007 from an extra‑marital relationship which has now ended.  The child has lived in the United Kingdom all his life.  At the date of the deportation order he was under the age of seven years but by the time of the decision under review, he had attained the age of seven.  He lives with his biological mother who has raised him as a single parent since the petitioner separated from her.  Both the child and his mother are Jamaican nationals.  At the time of the hearing before me neither of them had any lawful basis to remain in the United Kingdom.  Applications on behalf of both mother and child for leave to remain were refused on 1 September 2014.  I was told that that decision had been appealed.  The petitioner has a genuine and subsisting parental relationship with his son.

[7]        The petitioner is a “foreign criminal” in terms of section 32(1) and (2) of the UK Borders Act 2007 Subsection(4) of section 32 provides that the deportation of a foreign criminal is conducive to the public good.  Subsections (5) and (6) provide that the Secretary of State is obliged to make a deportation order, and is prohibited from revoking a deportation order, in respect of a foreign criminal unless one of the exceptions set out in section 33 applies.  Section 33(1) provides that sections 32(4) and (5) will not apply where an exception in section 33 applies.  One of the exceptions provided for in subsection (2) of section 33 is where removal of the foreign criminal  in pursuance of a deportation order would breach his Convention rights.

[8]        The provisions relating to deportation are contained in Part 13 of the Immigration Rules.         Paragraph A362 of the Rules provides that where article 8 is raised in the context of deportation a claim under article 8 will only succeed if the requirements of the rules as at 28 July 2014 are met.  As at 28 July 2014 the relevant Rules were contained in paragraphs A398, 398 and 399 of the Rules which provide as follows:

“A398.  These rules apply where

(b)        a foreign criminal applies for a deportation order made against him to be revoked.

398.     Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention and …

(b)        the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment for less than 4 years but at least 12 months …

The Secretary of State in assessing that claim will consider whether paragraph 399 … applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in [paragraph] 399.

399.     This paragraph applies where paragraph 398(b) … applies if:

(a)        the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and …

(ii)        the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision;  and …

(a)        it would be unduly harsh for the child to live in the country to which the person is to be deported;  and

(b)        it would be unduly harsh for the child to remain in the UK without the person who is to be deported.”

The terms of section 94B of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014  are as follows:

“Appeal from the United Kingdom: certification of human rights claims made by persons liable to deportation

(1)        This section applies where a human rights claim has been made by a person (“P”) who is liable to deportation under –

(a)        section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good), or

(b)        section 3(6) of that Act (court recommending deportation following conviction).

(2)        The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

(3)        The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.

[9]        In the decision letter of 22 December 2014 the respondent considered whether the petitioner met the requirements of the exception to deportation on the basis of a family life both with his son and separately with his wife.  In relation to his family life with his son the respondent did not accept that it would be unduly harsh for the child to live in Jamaica or for him and his mother  to remain in the United Kingdom even although the petitioner were to be deported.  In addition she considered it reasonable that the child should leave the United Kingdom with his mother since their applications for leave to remain had both been refused.  The child would be leaving the United Kingdom as part of a family unit and would have the support of his mother and other family members to enable him to integrate into Jamaican society.  She further considered that even if the child and his mother were to be granted leave to remain in the United Kingdom, the petitioner’s removal to Jamaica would not be disproportionate given the serious nature of the criminal charge of which he had been convicted.  In these circumstances the petitioner did not satisfy the requirements of paragraph 399(a)(ii).   

[10]      In relation to the petitioner’s claim to have a family life in the United Kingdom with his wife, the Secretary of State accepted that she was a British citizen and that the petitioner had a genuine and subsisting relationship with her.  However the relationship began in August 2003 at a time when the petitioner’s immigration status was precarious.  The Secretary of State did not accept that it would be unduly harsh for the petitioner’s wife to live in Jamaica or to remain in the United Kingdom even although the petitioner were to be deported.  In the determination of the petitioner’s immigration appeal the First-tier tribunal found that there were no insurmountable obstacles to the petitioner having a family life with his wife outside the United Kingdom.  In these circumstances the Secretary of State did not accept that the petitioner met the requirements of the exception to deportation on the basis of family life with his wife. 

[11]      Mr Caskie for the petitioner intimated that only the decision to certify was challenged.  The decision to deport was not.  He submitted that the Secretary of State was bound to comply with section 55 of the Borders, Citizenship and Immigration Act 2009 which required her to have regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.  The petitioner’s representations to the tribunal and to the Secretary of State included a letter from the head teacher of his son’s school stating that the child had made better progress since he had had increased contact with his father.  The letter also expressed grave concern regarding the welfare of the child, asserting that the disruption of losing his father would have a severe impact on his life.  Mr Caskie submitted that the child fulfilled the requirements of paragraph 276ADE of the Immigration Rules.  His application for leave to remain and that of his mother had not been certified as clearly unfounded under section 94 of the 2002 Act and so their appeals should be regarded as having some prospects of success.

[12]      The first ground on which the petitioner seeks review of certification is expressed in the petition in this way.    

“No reasonable Secretary of State would reach a decision affecting a child born in the United Kingdom and now aged seven years or more and who is now ex facie entitled to remain in the United Kingdom because they meet (sic) Immigration Rule 276 ADE (leave to remain on private life grounds) nor could a reasonable Secretary of State consider removal of a parent who would be entitled in terms of the Immigration Rules to revocation of a deportation order not give rise to a breach of S.6 of the Human Rights Act 1998”.

[13]      I found it difficult to understand that passage but Mr Caskie for the petitioner informed me that its meaning was that when the Secretary of State when considering certification of a claim under section 94B was obliged to consider all of the petitioner’s rights under the Human Rights Convention and not only the risk of serious irreversible harm.    Mr Pirie for the respondent submitted that the petitioner had failed to set out such a case in his pleadings.  While there is force with Mr Pirie’s submission I do not consider that the Secretary of State will be significantly prejudiced if the petitioner is allowed to advance the argument outlined by Mr Caskie.

[14]      The second argument advanced on behalf of the petitioner was that the Secretary of State had failed to give consideration to the impact the removal of the petitioner would have on his relationship with his son, and in particular whether that impact would cause serious irreversible harm to that relationship. No consideration had been given to the length of time that might pass before the petitioner’s appeal could be heard. 

[15]      Finally Mr Caskie submitted that no reasonable Secretary of State would consider that the removal of the petitioner pending his appeal would be reasonable where the very act of removal would reduce the prospects of success for the petitioner.

[16]      On behalf of the respondent Mr Pirie moved me to refuse the petition on the basis that the decision to certify was within the range of reasonable decisions open to the Secretary of State on the material before her.  He submitted that the petitioner had failed to satisfy the requirements of paragraph 399(a) of the Rules,  and to demonstrate that there were very compelling circumstances which would outweigh the public interest in his deportation.  Under reference to MF (Nigeria) v Secretary of State for the Home Department, [2014] IWLR 544  Mr Pirie submitted that the effect of paragraph 398 was that, in the determination of the question whether the removal of the petitioner was a proportionate interference with his Article 8 Rights the scales were heavily weighted in favour of deportation.  The decision under review was consistent with the published policies which the respondent was required to apply.  Those policies had not been challenged by the petitioner.  The respondent had considered the four criteria set out in paragraph 399 and had come to a reasonable decision in relation to them.  She had gone on to consider whether there were any very compelling circumstances over and above those criteria and had concluded that none existed.  Finally she had considered whether the petitioner faced a real risk of serious irreversible harm if he were to be removed from the United Kingdom prior to the hearing of his appeal and had concluded that there were none on the basis of the evidence before her.  The court’s decision had to be made on the basis of the material which was before the respondent.  The effect of certification was temporary and would have no effect on the determination of the appeal.  If the petitioner succeeded he would be allowed back into the United Kingdom.  For that reason the test to be applied was different from the tests applied to the merits of a human rights claim as set out in R (ex parte Razgar) v The Secretary of State for the Home Department [2004] UKHL 27.

[17]      The respondent had a decision of the First-tier tribunal before her which included a finding that it would be reasonable to expect the petitioner’s wife to transfer to Jamaica.  The petitioner had a daughter in Jamaica to whose support he contributed.  It was reasonable to envisage that the petitioner’s son and his mother could remove to Jamaica since neither of them had Leave to Remain in the United Kingdom at the time of the decision.  In relation to the evidence of the child’s head teacher, Mr Pirie pointed out that his letter did not deal with the possibility of the child removing to Jamaica nor his ability to adapt to that situation.  Moreover the child did not fulfil the requirements of paragraph 276 ADE.

Discussion
[18]      I am concerned only with the motion to reduce the decision to certify the refusal to revoke the petitioner’s deportation order in terms of section 94B of the 2002 Act.  The arguments advanced by Mr Caskie were based only on the petitioner’s relationship with his son.  No argument was advanced based upon his relationship with his wife.  His arguments were that the respondent’s decision was flawed by examples Wednesbury unreasonableness rather than specific errors of omission or commission in relation to the taking account of relevant factors.  Accordingly the question which I have to answer is was the respondent’s decision so unreasonable that no reasonable authority could have decided in that way.

[19]      I deal firstly with the argument that the respondent was obliged to consider all of the petitioner’s rights under the Human Rights Convention and not only the risk of serious irreversible harm.  Before the respondent can certify a claim under section 94B, subsection (2) requires her to be satisfied that removal of the petitioner pending the outcome of the appeal would not be unlawful under section 6 of the Human Rights Act.  Although Mr Caskie did not specify which, if any, of the petitioner’s rights the respondent had failed to consider, there was no suggestion that any rights other than those under article 8 were involved.  The petitioner’s rights under article 8 and those of his son were the subject of very full consideration by the respondent in relation to the decision to refuse to revoke the deportation order.  The decision to certify was consequent on that decision and the consideration which the respondent gave to the petitioner’s rights in relation to the decision not to revoke when applied equally to the question of certification.  In my view therefore full consideration was given to the petitioner’s rights under the Human Rights Convention in relation to interim removal. 

[20]      Subsection (3) of section 94B deals with the grounds upon which a claim may be certified.  The grounds of certification are the reasons why a claim should be certified rather than the reasons why it should not.  The reasons why certification should not be made are matters which fall to be considered under subsection (2).  There need only be one ground on which a decision to certify is made.  The legislature has highlighted  as a ground of certification for particular attention by the decision‑maker the lack of a real risk of serious irreversible harm as a ground of certification for particular attention by the decision-maker.  That was the ground upon which the respondent based her decision in this case and it was in my opinion legitimate for her to do so on the evidence available.

[21]      In relation to the second ground of argument that the respondent had failed to consider whether removal of the petitioner would cause serious irreversible harm to the relationship between him and his son, it is clear that in the decision letter the respondent gave detailed consideration to this question in relation to the question of revocation of the deportation order.  The same considerations were applied to the question of certification.  It has to be borne in mind that certification results in the temporary removal of the petitioner.  If his appeal is successful he will be allowed to return to the United Kingdom.  Accordingly, serious irreversible harm to the relationship is less likely to be attributable to certification than to permanent removal.

[22]      The argument that no reasonable Secretary of State would consider removal of the petitioner because removal would remove his prospect of success is without merit.  Appeals by applicants within and outside the United Kingdom are treated equally and no evidence was offered to support the suggestion that that would not be so.

[23]      The respondent made her policy public in a Home Office document entitled “Section 94B Certification Guidance for Non-European Economic Area Deportation Cases”,  which is available on the internet.  At paragraph 3.2 of the document it is stated that the deportation process should be as efficient and effective as possible, and that case owners should seek to apply section 94B certification in all applicable cases where doing would not result in serious irreversible harm.  As Lord Bingham said in Huang v The Home Secretary [2007] 2AC 167 at paragraph 16 in connection with the task facing an appellate Immigration Authority:

“There will, in almost any case, be certain general considerations to bear in mind:  the general administrative desirability of applying known rules for a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another;  the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory;  the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain;  the need to discourage fraud, deception and deliberate breaches of the law; and so on.”

These considerations apply equally to decisions under section 94B.         

[24]      Throughout the bulk of the period of his relationship with his son, the petitioner’s immigration status has been precarious.  He has lived for a substantial part of his life in Jamaica.  His son and his son’s mother are Jamaican citizens and at the time of the decision under review had no right to remain in the United Kingdom.  In that situation the respondent was in my opinion entitled to consider it reasonable that the child and his mother should leave the United Kingdom.  The tribunal found that there was nothing standing in the way of the petitioner’s wife making a life in Jamaica.  The petitioner has committed a serious crime.  The public interest in the deportation of foreign criminals is very great.  The respondent’s policy reflects that fact. The effect of the provisions of section 94(B) and the relevant paragraphs of the Immigration Rules is to weigh the balance heavily in favour of deportation of foreign criminals.  I am satisfied that the respondent considered all the relevant factors in relation to the petitioner and his son.  In my opinion it cannot be said that the decision to certify was one which no reasonable Secretary of State could have taken.

[25]      Although I did not understand it to be a ground of review, Mr Caskie advanced an argument that the respondent should not have certified the petitioner’s claim without informing him of her intention to do so.  The respondent’s policy had been made public, as had the provisions of section 94B.  The petitioner and his advisors were therefore aware of the likelihood that the respondent would certify his claim.  In these circumstances the respondent was entitled to proceed on the basis that all the information which the petitioner wished to place before her was contained in his representations.  Accordingly I reject the argument, that the respondent should not have certified the claim without giving the petitioner an opportunity to make further representation.

[26]      For these reasons I refuse the prayer of the petition.  I repel the plea in law for the petitioner and sustain the plea in law for the respondent.