Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 81

P20/16

OPINION OF LADY STACEY

In the petition

S S

Petitioner;

for

Judicial Review

Respondent:

Petitioner:  Coll;  Drummond Miller LLP

Respondent:  Komorowski;  Office of the Advocate General

14 June 2016

[1]        The petitioner is a citizen of India.  His date of birth is 10 May 1940 and so he is now 76 years of age.  He came to the United Kingdom in 1998 on a visitor’s visa valid for 6 months.  He has lived in this country ever since.  Having arrived in February 1998 the petitioner sought leave to remain on grounds of long residence in 2006.  That application was refused in March 2009 and an appeal marked against it was withdrawn.  In August 2009 the petitioner made an application for leave to remain under articles 3 and 8 of the European Convention on Human Rights (“ECHR”), submitting further material in connection with that application in September 2009.  The application was refused by the respondent in 2013.  The petitioner appealed against that to the First‑tier Tribunal.  The appeal was dismissed on 24 March 2014.  Permission to appeal that decision was refused and the appeal rights of the petitioner were exhausted by 19 May 2014.  The petitioner made further representations to the respondent in September 2014.  The respondent refused to grant leave on 13 February 2015.  The petitioner submitted further medical evidence on 7 July and 18 September 2015.  The respondent wrote to the petitioner on 2 October 2015 (6/1 of process) stating that his further submissions had been fully considered and that the respondent concluded that he did not qualify for leave to remain on any basis.  Enclosed with the letter were several pages headed “consideration of submissions” giving the reasoning of the respondent.  The respondent set out at length her consideration of the petitioner’s application.  Counsel did not argue that any error had been made in the consideration under the Immigration Rules. 

[2]        Consideration was given to the case outside the requirements of the rules.  The respondent set out between pages 6 and 14 the submissions made and her decision on them.  She noted that the petitioner’s grandson serves in the British Army and that there is telephone contact between him and the petitioner.  She found that would be continued from India. 

[3]        The petitioner’s medical condition was noted by the respondent, to the effect that he has prostate cancer for which he gets treatment.  The respondent considered that such treatment would be available in India, having noted facilities described in a report dated November 2014.  She noted that the petitioner did not claim that he could not get treatment in India.  The respondent also considered the relevance of the petitioner’s age.  She found that care of the aged is available in India.  The respondent considered the petitioner’s length of residence, but found it was not a sufficiently compelling reason to justify allowing the petitioner to remain.  She found that the petitioner should have made arrangements to leave on expiry of his 6 months permission; and thereafter following refusal of applications in 2009, 2013 and 2014.  She considered that any delay in her decision making (which amounted to 8 months) was outweighed by the petitioner’s failure to keep in contact. 

[4]        Counsel for the petitioner submitted that the respondent had failed to apply anxious scrutiny to the representations made on behalf of the petitioner.  He accepted that the respondent had firstly dealt with the application made in terms of the Immigration Rules.  He accepted that the respondent was correct to reject the application under the Immigration Rules on the basis that the petitioner did not have family in the United Kingdom and had not been present for 20 years.  In his petition, the petitioner stated that the respondent had failed to consider “at least three matters” as follows:

1.         That the petitioner is 74 years of age.

2.         That he has been diagnosed with cancer and,

3.         That the respondent has been aware of his presence for a decade but has taken no steps to remove him.

In oral argument, counsel for the petitioner expanded matters and argued that the respondent had failed to focus on the main submission said to have been made on the behalf of the petitioner, which was that his private life consisted of his attending the Sikh temple where he went most days, and where he was taken care of.  Counsel argued that this arose because the petitioner is elderly, and had recently been diagnosed with prostate cancer for which he was obtaining treatment.  He had therefore, as counsel put it, been required to face up to his own mortality.  While counsel accepted that age and ill‑health were not sufficient, in this case, to found a case under article 8, he argued that the circumstances of the petitioner were more than that of being elderly and in ill‑health.  He argued that this petitioner had no social life other than at the temple and that he was completely defined by his dependence on going to the temple and obtaining care there.  There was nothing in the decision‑making of the respondent to indicate that he had considered that matter.

[5]        As I understood counsel he accepted that the respondent when considering a case outwith the Rules, should consider all of the circumstances and should apply anxious scrutiny to them and should then give reasons for her decision.  The respondent had in this case decided that the submissions made on behalf of the petitioner did not amount to fresh submissions and that in so doing the respondent had decided that no immigration judge, properly instructing himself on the law, could decide that the petitioner should be allowed leave to remain outwith the Rules.  Counsel argued that there was no consideration of the real point made on behalf of the petitioner.  Counsel made reference to cases of ABC v SSHD [2013] CSOH 32 and RA v SSHD [2011] CSOH 68 where the correct approach to treating further representations as constituting a fresh claim is set out.  Counsel argued that the test is that of Wednesbury unreasonableness;  that the decision is that of the Secretary of State and the court may not substitute its own decision; (see Dangol v Secretary of State for the Home Department 2011 CSIH 20);  that the court must ask itself two questions as follows:

1.         Has the Secretary of State asked himself the correct question? - That is, whether there is a realistic chance that an immigration judge applying the rule of anxious scrutiny will accept that the petitioner will be exposed to a real risk of persecution on return?

2.         In addressing that question has the Secretary of State satisfied the requirements of anxious scrutiny see WM (JRC) v The Secretary of State for the Home Department 2006 EWCA Civ 1495 and so argued, from that case, that anxious scrutiny means that the decision letter must demonstrate that no material factor that could conceivably be regarded as favourable to the petitioner has been left out of account but always under the qualification that anxious scrutiny does not mean that the Secretary of State must show undue credulity to the petitioner’s account.

Counsel appreciated that question one is in relation to asylum cases, but argued that it is relevant to cases brought under ECHR article 8. 

[6]        Counsel argued that the Secretary of State failed to consider what the medical diagnosis really meant.  The petitioner, 74 years of age at the time of the decision, would find it difficult to set up a private life in his state of health in India, even if treatment for prostate cancer was available to him.  He made reference to the case of N v SSHD [2005] UKHL 31.  Counsel stated that caregivers fulfill a religious obligation by providing care to the petitioner.  He stated that if the petitioner had to return to India he would be seen as a “charity case” where as in this country he was part of a community.  He emphasised that any communication with his friends in this country by telephone would not be sufficient as there required to be, as he put it, “a breaking of bread” and a physical sharing of life at the temple.  Counsel argued that the respondent had concentrated exclusively on medical matters and had not considered the private life claim made on behalf of the petitioner.  He referred to the case of EB Kosovo [2009] 1 AC 1159  in which time passed between the application for asylum and the decision.  He drew an analogy with the current case.  He stated that for 10 years the petitioner had fulfilled an obligation to sign regularly and the respondent had taken no steps to remove him.

[7]        In looking at the reasons given by the respondent for the decision, counsel argued that each ground relating to health had been narrowed considerably and no attempt had been made to look at the whole picture.  He noted that the respondent had asked for further medical evidence and so there was an emphasis on medical matters.

[8]        In discussion counsel for the petitioner was not able to show any part of the application which set out that the petitioner was getting care at the temple.  There were a number of letters from friends of the petitioner stating that he was a respected member of the community.  Some of those letters said that he attended the temple at Otago Street in Glasgow, and at least one letter stated that he attended the temple in Nithsdale Road or the temple in Albert Drive.  In discussion, in pointing out that these various temples are in different parts of Glasgow, counsel indicated that the petitioner also attended the temple at Berkeley Street in Glasgow.  None of the letters indicated that the petitioner was in receipt of care.  Rather they indicated that he was a member of the temple and that he contributed to the life of the temple.

[9]        Counsel for the respondent moved me to refuse the petitioner’s motion, to sustain the second plea‑in‑law for the respondent and to repel the pleas‑in‑law for the petitioner.  He submitted that the petitioner’s arguments as stated in court were that the respondent had failed to consider the nature and degree of attachment to the community which the petitioner had, and had failed to consider the significance of his health and other circumstances such as his awareness of his own mortality.  He argued that such an argument had not been presented to the Secretary of State.  Nor was it foreshadowed in the petition or the statement of issues.  He was however prepared to deal with the argument though he noted that it was not foreshadowed in the pre‑litigation letter.

[10]      Counsel argued that the respondent was under no duty to ask for particular information from an applicant.  The applicant knows best his own situation and should be able to explain to the respondent in his application why it is that he should have leave to remain.  This applicant had the benefit of legal representation.  The argument put forward amounted to the respondent having an obligation to do far more than exercise anxious scrutiny;  accordingly to counsel for the petitioner he was obliged to ask the petitioner for more information.  Mr Komorowski noted that the petitioner did not meet any argument that he had been prejudiced by any failure to ask him more information in that he did not say that had he been asked he would have given information.  Rather he attempted to argue that his application form contained the relevant information.

[11]      Counsel submitted that the respondent was well aware of the petitioner’s age, his length of residence, and his medical condition.  He knew that the petitioner had no family in this country except for a grandson who was a serving solider, based in England.  His wife, with whom he was still in telephone contact, was in India.  As it was clear from the letter that the respondent considered all of the information with which she was supplied.  There was no reference in the application to the petitioner’s awareness of his own mortality or to his getting care from members of his religious community.

[12]      The petitioner had been present illegally since about the end of 1998.  His case was considered fully by the First‑tier Tribunal in March 2014.  If there had been significant changes in circumstances since then which the petitioner had told the respondent about there might be some justification in thinking that a further immigration judge might take a different view; but there had not been any intimation of any significant change.

[13]      Counsel argued that in the case of N there was some assistance for the court as it showed that medical condition might not be given much weight.  The case of EB Kosovo was not in point because there had in that case been a prompt application and the passage of time had been of particular importance because the applicant had been a minor at the time of application and by the time it was considered he had reached majority.  There was no such situation in the present case as the petitioner had not made a prompt application and his increase in age had not made any significant difference.

[14]      The issue in this case is whether or not the decision by the respondent communicated by the letter of 2 October 2015 shows that the respondent did take proper account of all relevant factors in deciding whether or not the petitioner’s human rights claim had a realistic prospect of success and whether the Secretary of State made any error of law in her consideration of the Immigration Rule 353B.

[15]      It is clear that the letter gives full consideration to all the material that was put before the Secretary of State.  There is nothing in the application, the accompanying letter, or the references, which states that the petitioner is dependent on people at any of the temples he attends for care, or that he has no life apart from at the temple.  That case was simply not put to the respondent and the respondent cannot therefore be criticised for not taking it into account.  The respondent does not have a duty to ask further questions.  While the respondent did ask for further information about medical matters, she did not in so doing foreclose the opportunity for the petitioner to state whatever he wished to state about his private life. 

[16]      Immigration Rule 353B relates to removal.  While counsel for the petitioner did not make an oral submission on this matter, his written argument included a submission that the terms of the rule are such that there must be cases which are allowable under the rule although they have failed on article 8 grounds.  Counsel for the respondent relied on the case of Qongwane v Secretary of State for the Home Department [2014] Imm AR 1179 in which it was stated that that Rule is relevant only to those who have had their claims to remain in the United Kingdom finally determined.  There is then a safety valve by which the Secretary of State may refrain from removing such a person if there are circumstances which show that she should do so.  These occasions are likely to be rare because the consideration of the article 8 claim will involve consideration of the matters which would come up under Immigration Rule 353B.  In the current case, counsel was, in my opinion, correct to argue that there was nothing in the application or in the petition to suggest that there were any factors which would lead to such a decision in this case.

[17]      I find that this petition is without merit.  The circumstances of the petitioner as set out in his application have been properly considered and the Secretary of State has reached a decision that she was entitled to reach.  The circumstances which counsel relied on in his oral argument were not put before the respondent in the application, nor were they vouched by the references sent with the application.  Counsel appeared to be putting a new case at the hearing. 

[18]      I will therefore repel the plea‑in‑law for the petitioner and uphold the second plea‑in‑law for the respondent.  I reserve all questions of expenses.