Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 52

P811/15

OPINION OF LORD DOHERTY

In the petition of

J A (AP)

Petitioner;

for

Judicial Review of a decision of the Secretary of State for the Home Department dated 20 July 2015 to certify the petitioner’s human rights claim under section 94B of the Nationality, Immigration and Asylum Act 2002

Petitioner:  Caskie;  Drummond Miller LLP

Respondent:  Webster;  Office of the Solicitor to the Advocate General

6 April 2016

Introduction
[1]        In this petition for judicial review the petitioner, a citizen of Pakistan, seeks reduction of a decision of the Secretary of State for the Home Department (”the respondent”) dated 20 July 2015 to certify the petitioner’s human rights claim under section 94B of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).

[2]        In January 2002 the petitioner was granted leave to enter the United Kingdom. He arrived here in February 2002.  In March 2003 he was granted leave to remain as the spouse of a person settled here.  In 2008 he was convicted of having unlawful intercourse with a girl between the ages of 13 and 16.  He was made the subject of a 3 year probation order with 240 hours community service.  In 2013 he was convicted of further sexual offences against a child and was sentenced to 3 years and 6 months imprisonment.

[3]        On 13 February 2014 the respondent notified the petitioner of his liability to deportation.  She informed him that he had 20 working days in which to notify the Home Office of any reason he had for wishing to remain in the UK; any grounds on which he should be permitted to remain; or any grounds on which he should not be removed from, or required to leave, the UK.  In response the petitioner maintained that he had established a family and private life in the UK and that removing him would breach his article 8 ECHR rights.  The family life which the petitioner relied upon was his relationships with his wife and with his two sons.  The older son was born in November 2002 and lives with his mother, the petitioner’s ex-wife.  She has remarried. The petitioner maintained that he continued to have contact with that child. The younger son was born in October 2007 and lives with his mother (the petitioner’s wife) and the petitioner.

The decision letter

[4]        In the decision letter of 20 July 2015 the respondent considered the petitioner’s article 8 claim.  She accepted that both children were British citizens who had lived in the UK for at least 7 years.  She indicated that the best interests of the children were a primary consideration in making her decision.  However, she did not accept that the petitioner had a genuine and subsisting parental relationship with either child.  She accepted that the petitioner had a genuine and subsisting relationship with his wife; and that his wife is a naturalised British citizen who had been born in Pakistan but lived in the UK since 2005.  She concluded that there was a strong public interest in the petitioner being deported and, because that public interest outweighed the petitioner’s article 8 rights, that deportation would not breach the UK’s obligations under that article.  The respondent also decided to certify the petitioner’s article 8 claim under section 94B of the 2002 Act.  She concluded that he would not face a real risk of serious irreversible harm if removed to Pakistan pending the outcome of his appeal against the deportation decision; and that such removal would not be in breach of article 8.

Scope of the judicial review

[5]        The petitioner has an in-country right of appeal to the First-tier Tribunal against the decision to deport him.  However, he has no right of appeal against the respondent’s decision to certify his article 8 claim under section 94B. The only means of challenging that certification is judicial review.

Section 94B

[6]        Section 94B of the 2002 Act provides:

“94B. Appeal from within 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) …

…

(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.”

Section 94B was brought into force with effect from 28 July 2014.  The effect of certification under the section is that any appeal against the decision on the human rights claim must be brought from outside the United Kingdom.

Submissions for the petitioner

[7]        Mr Caskie submitted that the respondent had erred in a number of respects.

[8]        First, the section 94B certification process had been procedurally unfair. The petitioner had not been informed by the respondent that she was considering certification. Had he been he would have made representations which addressed that issue.  Mr Caskie founded upon R (Kiarie and Byndloss) v Secretary of State for the Home Department [2015] EWCA Civ 1020, per Richards LJ at para 73.

[9]        Second, it was plain from the terms of the decision letter that the respondent had not addressed her mind to the requirements of section 94B(2). Rather, she had focused exclusively on the test in section 94B(3).  The only article 8 consideration by the respondent had been in the context of the deportation decision. The relevant factors and the balancing exercise for section 94(2) were not the same as the factors and balancing exercise in respect of deportation. The petitioner had proceeded on the basis that if deportation of the petitioner would not breach the UK’s obligations under article 8, it followed that temporary removal pending resolution of his appeal would also be proportionate and would not breach article 8. That was not necessarily so. The respondent had fallen into the same error as she had fallen into in R (Kiarie and Byndloss) v Secretary of State for the Home Department, supra, (see Richards LJ at para 73).

[10]      Third, the respondent ought to have ascertained the views of the petitioner’s children - or at least the views of the older child - in relation to the likely effects of a temporary removal.  Reliance was placed on ZH (Tanzania) v Home Secretary [2011] 2 AC 166, per Baroness Hale at paras 34-36.  In failing to do so she had failed to treat the best interests of the children as a primary consideration (Borders, Citizenship and Immigration Act 2009, section 55), and had left out of account a material factor.

[11]      These errors were material. The court should be very slow to conclude that certification would have been inevitable even if the respondent had done what she ought to have done.  The decision to certify should be reduced.

Submissions for the respondent

[12]      Mr Webster submitted that the certification process had not been procedurally unfair.  While it was correct that the petitioner had not been specifically called upon to address the question of certification in advance of the decision being taken, he and those advising him could hardly have been unaware of the possibility of certification.

[13]      On a fair reading of the decision letter the respondent had addressed her mind to the requirements of section 94B(2). Where factors relevant to the article 8 claim had already been extensively discussed in the context of the deportation decision, it was unsurprising that the respondent should refer to that discussion and conclude that since deportation would not breach article 8 neither would the lesser interference of temporary removal.

[14]      The best interests of the children had been considered.  It was for the petitioner to provide the respondent with all the material he wanted her to consider.  It had not been incumbent upon the respondent in the circumstances of the present case to seek to obtain the views of either child.

[15]      In any event, if the respondent had committed any (or indeed, all) of the suggested errors, the error(s) had not been material.  Had she approached matters correctly she would have reached the same decision.  In those circumstances the decision of 20 July 2015 to certify should not be reduced.

Decision

Procedural unfairness

[16]      The petitioner was not specifically notified by the respondent that consideration was being given to certifying his human rights claim.  In March 2014, when his advisers submitted representations in relation to the proposed making of a deportation order, section 94B was not even in force.  It did not come into force until July 2014.  In this regard the petitioner’s position appears to be similar to that of Mr Kiarie in R (Kiarie and Byndloss) v Secretary of State for the Home Department, supra, where Richards LJ observed:          

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              “15. [Mr Kiarie] was not informed that consideration was being given to the exercise of the power under section 94B so as to allow his removal pending any appeal against deportation. As at the date of notification of the intention to make a deportation order, that was not surprising, since section 94B was not yet in force; but even after it had come into force, he was not told prior to the decision of 10 October 2014 (see below) that consideration was being given to its use in his case.

…

73. … Mr Kiarie was not informed in advance that consideration was being given to the certification of his claim under section 94B and he was not given a fair opportunity to make representations on the subject: he could not reasonably have been expected to make such representations in the absence of notice, given that the section was not even in force at the date when he was notified of the intention to make a deportation order against him. The course adopted was procedurally unfair…”

There might have been grounds for reaching a different conclusion in the present case if it had been clear that the petitioner’s advisers must have been aware of the possibility of certification.  The petitioner was represented by solicitors at all material times.  Almost eleven months passed between the coming into force of the section and the issuing of the decision of 20 July 2015 during which period those solicitors could have made additional representations on the petitioner’s behalf in relation to certification.  While in my opinion it would be surprising if the petitioner’s solicitors were unaware of the coming into force of section 94B and of the respondent’s published policy in relation to that section, I am prepared to assume in his favour that they were not, and that he was not advised by them of the position.  On that basis, the certification process did not comply with the requirements of procedural fairness.

The correct approach to decisions under section 94B

[17]      The correct general approach to section 94B in the context of article 8 was discussed by the court in R (Kiarie and Byndloss) v Secretary of State for the Home Department, supra. The respondent cannot lawfully certify unless she considers that removal pending the outcome of an appeal would not be in breach of the person’s Convention rights (Richards LJ at paras 34, 35). Richards LJ continued:

“38. Consideration must be given, in particular, to whether removal pending determination of an appeal would interfere with the person's rights under article 8 and, if so, whether removal for that interim period would meet the requirements of proportionality. Unless the decision-maker considers that there would be no such interference or that any such interference would be proportionate, the claim cannot lawfully be certified under section 94B.

…

42 The issue of proportionality needs to be examined in the context of the individual decisions, but certain general points can be made at this stage. Lord Keen emphasised the strong public interest in the deportation of foreign nationals who have committed serious criminal offences contrary to the laws of the United Kingdom. He referred to the judgment of Laws LJ in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550, [2014] 1 WLR 998, which underlined the great weight to be attached to the deportation of foreign criminals when carrying out the article 8 balancing exercise. For example:

“54. I draw particular attention to the provision contained in section 33(7) [of the UK Borders Act 2007]: ‘section 32(4) applies despite the application of Exception 1 …’, that is to say, a foreign criminal's deportation remains conducive to the public good notwithstanding his successful reliance on article 8. I said at para 46 above that while the authorities demonstrate that there is no rule of exceptionality for article 8, they also clearly show that the more pressing the public interest in removal or deportation, the stronger must be the claim under article 8 if it is to prevail. The pressing nature of the public interest here is vividly informed by the fact that by Parliament's express declaration the public interest is injured if the criminal's deportation is not effected. Such a result could in my judgment only be justified by a very strong claim indeed.”

43 A similar point is made in the judgment of this court, given by the Master of the Rolls, in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, [2014] 1 WLR 544, which concerned the provisions of the Immigration Rules governing deportation in an article 8 case. As was stated at paragraph 42 of the judgment (admittedly in the context of a family life claim by a person who established family life at a time when he knew it to be precarious):

“42. … [In] approaching the question of whether removal is a proportionate interference with an individual's article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be ‘exceptional’) is required to outweigh the public interest in removal. In our view, it is no coincidence that the phrase ‘exceptional circumstances’ is used in the new rules in the context of weighing the competing factors for and against deportation of foreign criminals.”

44 In general terms, and subject to specific factors such as risk of reoffending, it may be thought that less weight attaches to the public interest in removal in the context of section 94B, when the only question is whether the person should be allowed to remain in the United Kingdom for an interim period pending determination of any appeal, than when considering the underlying issue of deportation for the longer term. But the very fact that Parliament has chosen to allow removal for that interim period, provided that it does not breach section 6 of the Human Rights Act, shows that substantial weight must be attached to that public interest in that context too: Parliament has carried through the policy of the deportation provisions of the UK Borders Act 2007 into section 94B. In deciding the issue of proportionality in an article 8 case, the public interest is not a trump card but it is an important consideration in favour of removal.”

I respectfully agree with Lord Justice Richards’ analysis.

[18]      In my opinion it is clear from the terms of the decision letter that the respondent has misdirected herself in relation to the requirements of section 94B(2).  She appears to have proceeded on the basis that since deportation would be proportionate and would not give rise to a breach of article 8, interim removal pending appeal - a lesser interference - would also be proportionate and lawful.  It is, of course, often the case that aspects of the analysis relating to the proportionality of a deportation decision may also be relevant to a section 94B decision, and may be carried across into the reasoning set out in support of the certification decision (R (Kiarie and Byndloss) v Secretary of State for the Home Department, supra, per Richards LJ at para 76).  However, the decision maker should not lose sight of the fact that the two exercises are not the same. Some of the factors to be placed in the balance may differ, as may the weight to be attributed to factors.  In my opinion it is not clear from the decision letter that the respondent did carry out the separate and distinct proportionality assessment in respect of certification which she required to carry out.

The best interests of the children

[19]      I am not persuaded that the respondent failed to consider the best interests of the children.  She did not accept that the petitioner had a genuine and subsisting parental relationship with either child. There was nothing in the petitioner’s representations opposing deportation which pointed to a need for the respondent to ascertain either child’s views.  He did not seek to place those views before her in that context, nor did he suggest that it was appropriate that she take steps to elicit them. In the whole circumstances I do not accept that it was incumbent upon the respondent to seek to ascertain either child’s views in relation to the proposed interim removal.

Reduction of the decision?

[20]      The respondent has erred in the two respects already described.  It does not follow that the decision to certify should be reduced.  Reduction would be pointless if it is clear that the same decision would be reached if the respondent followed the correct approach.

[21]      I am in no doubt that the respondent would reach the same decision.  Here, the public interest favouring interim removal is very strong.  The petitioner has been convicted of very serious sexual offences against children.  He is a repeat offender, and the risk of re-offending cannot be discounted.  It would take a very strong article 8 case indeed to justify the conclusion that interim removal would be disproportionate. The material which the petitioner placed before the respondent is not indicative of him having such a case.  Nothing which Mr Caskie outlined to the court suggests that there is in fact any realistic basis for concluding that the petitioner is in a position to advance, or make good, such a case. 

Disposal

[22]      I shall repel the petitioner’s plea-in-law and refuse the petition. I reserve meantime all questions of expenses.