Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 84

P1047/15

OPINION OF LORD MCEWAN

In the petition

(FIRST) VALSAMMA POOVAKOTTIL KURIAKOSE AND (SECOND) REJI KURIA

Petitioners;

for

Judicial review of decisions by the Secretary of State for the Home Department

Petitioners:  Forrest;  Drummond Miller LLP

Respondent:  Komorowski;  Office of the Advocate General

15 June 2016

[1]        I heard the argument in this case in January and March 2016.  Mr Forrest amended the petition and lodged extra productions without any opposition from Mr Komorowski for the Ministers. 

[2]        From the papers before me the matter has arisen in this way.  The first petitioner entered the UK as a student and had leave to remain.  When she applied for further leave it was refused.  Her partner and child were in the same position.  The refusal letters were dated 29 October 2013.  None of the parties could meet the rules requirements and there were no exceptional circumstances to operate article 8.  Being allowed an in‑country appeal, the cases were heard before a First‑tier Tribunal on 22 January 2014 (Judge Morrison).  On 3 February the appeals were refused, and detailed reasons were provided. 

[3]        On 23 December 2014 new applications were made (number 6/5 of process) and on 15 February 2015 these were again refused (numbers 6/1 to 3 of process).  There then followed the pre action protocol letter of 15 September 2015 (number 6/4 of process) which is the precursor to this judicial review.  That was looked at as a fresh claim and refused on 17 November 2015. 

[4]        Some well known and mainly recent cases were referred to and I note them here: 

Devaseelan v Secretary of State for the Home Department [2003] Imm AR 1

MS (India) v Secretary of State for the Home Department [2013] CSIH 52

Nasim v Secretary of State [2014] UKUT 25 (IAC)

Mirza v Secretary of State for the Home Department 2015 SC 572

Butt v Secretary of State for the Home Department [2015] CSIH 72

AM (s. 117B) Malawi v Secretary of State for the Home Department [2015] UKUT 260

VS (India) v Secretary of State for the Home Department 2015 SLT 651

MAK (Pakistan) v Secretary of State for the Home Department [2016] CSIH 13

[5]        Mr Forrest asked me to reduce the relevant decisions which were numbers 6/1, 6/2 and 6/3 of process, dated 15 February 2015;  and number 7/2 of process, dated 17 November 2015.  He then looked at, in some detail, the decision of the First‑tier Tribunal dated 3 February 2014.  I shall return to this.  He next looked at what was a “fresh application” in the letter of 23 December 2014 (number 6/5 of process) by which time the first petitioner was an overstayer.  He also accepted that what was in the best interests of the child was not part of the case;  nor was any letter written by the Scottish First Minister concerning political support. 

[6]        Counsel considered the first decision letter (number 6/1 of process).  The error in law arose in that letter he said in paragraphs 6 and 7.  Then came number 7/2 of process which was the “fresh claim”.  That left matters out of account and applied the wrong test.  The word “proportionality” had to appear.  The test was not “unjustifiably harsh consequences”.  Counsel referred to MS (India,) supra.  The issue was whether there was any fresh claim.  He referred to Mirza, supra, at pages 577 to 580.  (A case concerning a long overstayer.)  Butt, supra, was also looked at.  This petitioner has had the facts established and that was more like what happened in MAK (Pakistan), supra.  In his response Mr Forrest asked me to look again carefully at MAK (Pakistan).  Each case had to depend on its own facts. 

[7]        Mr Komorowski for the Ministers began by drawing my attention to an incorrect date in number 7/2 of process and that numbers 6/1 to 6/3 of process make no reference to rule 353.  The refusal on 29 October 2013 triggered the First‑tier Tribunal which itself refused the claim on 3 February 2014.  The letter of 29 December 2014 was refused on 15 February 2015. 

[8]        He invited me to sustain his only plea-in-law saying that the issue was, where the petitioners have had human rights claims considered and refused by a tribunal in February 2014,  did the Minister irrationally err in law in refusing, ten months later, when she found there was no realistic prospect of a second appeal being decided differently.  Nothing new had occurred in the intervening ten months. 

[9]        Counsel continued with a series of propositions viz.  The court should interfere only to the extent necessary to remedy an injustice and should normally only determine matters which affect the petitioner’s rights and interests.  If the court finds the rule 353 decision sustainable it follows that there is no practical purpose in reducing the decision letters and in assessing rule 353 the Minister is predicting the course which could be taken by a First‑tier Tribunal.  Any second tribunal would be bound by the first tribunal in the absence of new evidence.  Counsel referred to Devaseelan, supra, paragraphs 39 and 41 and to Butt paragraphs 6, 8 and 44. 

[10]      This case did not concern family life and the First‑tier Tribunal had found no interference with private life.  A proper balancing exercise had been carried out by a judge aware of all the facts.  Under article 8, private life claims will be of limited strength and are readily overridden by the public interest in immigration control where the context of the claim concerns friendship, work and other ties established in the UK.  Nasim, supra, was referred to at paragraphs 11 and 14.  Family life is more unique.  Here all that is put forward is a desire to work.  Counsel looked at AM (section 117B:  Malawi), supra.  It was important to remember the first petitioner was an overstayer and there was an element of precariousness.  The facts had to be looked at.  Proportionality was not a label or a “talisman”.  No new evidence had been produced apart from one letter.  Employment had to be seen, as described in Nasim, in the “fuzzy penumbra”.  The decision of the First‑tier Tribunal was inevitable.  It was aware of the employment.  The first  petitioner could work in India.  Since the hearing before the First‑tier Tribunal the case had weakened.  Since she could not lawfully work, she could not rely on work. 

[11]      It was proper to approach the case looking at the rules.  MS (India) was a good example of where there was a rule 353 case, a private life case and leave was sought outwith the rules.  As to proportionality, exceptional circumstances was merely a way of looking at it.  Counsel looked at in detail paragraphs 21 to 34. 

[12]      He then looked at VS (India), supra and read from it various passages from paragraphs 82 to 101.  He looked next at MAK (Pakistan) which showed exceptional circumstances.  Something particular was required.  If that was the case for family life, it was a fortiori for private life. 

[13]      In the present case there was no error in law or if there was it was not material.  The private life claim was weak as, especially here, it had gone beyond what was precarious into what was unlawful. 

[14]      I should say a little more about the tribunal decision.  There were no credibility issues with any of the witnesses.  It was conceded, as it had to be, that none of the petitioners could succeed under the Immigration Rules and that only article 8 was an issue.  Having referred to recent authorities the judge concluded (paragraph 22) that there were no compelling circumstances which could amount to a good arguable case.  To return them would not amount to a significant interference with family life and they could also re‑establish a private life in India.  The article 8 case was dismissed.  Before me it was not suggested that there was any error in the tribunal decision.  Let me move on to consider rule 353 and the jurisprudence. 

[15]      Rule 353 provides: 

“353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”

[16]      MS (India) was referred to as it was a “fresh claim” case and also one involving article 8 and leave outside the rules.  There had been one tribunal hearing.  The petitioner had meantime formed a relationship with a Scottish woman who was estranged from her husband.  She had two children.  He claimed as new material that they had established a private and family life.  One issue was whether that amounted to a fresh claim “ in the sense that, when taken together with material previously considered, the new submissions created a realistic prospect of success before an immigration judge” (paragraph 11).  The case also makes it clear by reference to R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin), that the new rules give better coverage to article 8 points arising from the jurisprudence, and so to get leave outside the rules will be rare and only likely to be seen in exceptional cases (paragraphs 7 and 24).  For such circumstances to arise there has to be a “good arguable case” that the rules have produced a disproportionate result and infringed article 8. 

[17]      Agreeing with the Lord Ordinary the Inner House refused judicial review of the Minister’s decision.  There was no fresh claim, a precarious relationship and no proper family life. 

[18]      Mirza concerned a long overstayer who had been given express permission to marry a British citizen.  He had been in the UK for almost ten years.  He did not qualify under the relevant rules and the only issue was whether article 8 applied.  The Inner House confirmed that the proper test was whether requiring the Scottish wife to live in Pakistan was proportionate to the legitimate objective.  Here there had not been a specific individual assessment of the whole facts.  The “precarious” status of the couple had to be looked at in the context that they had express permission to marry. 

[19]      Butt was a case where again the facts were very different.  There was a very lengthy immigration history with many attempts to seek leave to remain.  His case had been before an adjudicator, two tribunals and three times before the High Court in England.  As the case went on nothing was emerging which had not already been considered and rejected.  His immigration status in ECHR terms was “precarious”.  Lord Eassie (paragraphs 6 and 8) attached importance to the fact that things had “previously been conclusively adjudicated” when one was in the realm of a fresh claim. 

[20]      Nasim is a recent Upper Tribunal decision.  There were a number of appellants, and much was said about the scope of article 8 which had been called “the least defined and most unruly” of the convention rights.  The judges pointed out that the concept of “private life” was less clear than family life and that for it there was a “continuum” (paragraph 14), at the far end of which there was “a fuzzy penumbra” of rights. 

[21]      All of the appellants were students who had been refused leave to remain to undertake post study work.  The judges none the less held that their article 8 rights were not enhanced by their paying their fees, being free from criminal conduct and wishing to work and pay tax.  None of the appellants succeeded, including one who could advance a “family life”. 

[22]      MAK (Pakistan) was another case involving a married couple, proportionality and an article 8 assessment of the appellant and his wife.  The court noted the welter of judicial dicta on the subject in recent years and went on to state this (paragraph 1): 

“… it is primarily for these specialist tribunals to determine whether, notwithstanding that the appellant’s precarious immigration status was known to the spouse when family life commenced, there are weighty factors which tip the balance away from a decision to refuse leave to remain being regarded as proportionate …”

[23]      The appellant had come from Pakistan as a student and then later vanished, began to work in breach of his visa, formed a relationship with a British national and married.  He claimed leave to remain on the basis of family life.  There were health issues with the wife.  He was refused by the First‑tier Tribunal and the Upper Tribunal.  He did not qualify under the rules.  In refusing the appeal the court pointed out that the facts did not amount to disproportionate interference with article 8 rights of him or his wife.  There were no weighty exceptional factors which could have justified granting leave outwith the rules on the basis of article 8 proportionality.  The First‑tier Tribunal had (correctly) not regarded “insurmountable obstacles” as a test.

[24]      Devaseelan concerned the proper approach which an adjudicator should take in a second appeal against findings by an adjudicator who had heard an earlier appeal.  The facts were very different from the present.  It was an asylum case involving the Tamil population in Sri Lanka.  A second adjudicator was faced with substantially the same evidence as an earlier adjudicator.  The appeal tribunal held (paragraphs 39 and 41) that the first determinations should always be the starting point and is an authoritative assessment of the (petitioner’s) status at the time it was made.  If there are no materially different facts before the second adjudicator, the matter should not be relitigated and the findings should be in line with the first determination. 

[25]      AM was referred to for what a hypothetical immigration judge would now have to do, faced with a case such as the present case where the petitioner is an overstayer and there is an element of precariousness.  The new section 117A has to be applied in considering article 8.  It is not necessary to quote it here and indeed a failure to make express reference to it in the case was not a fatal error where someone could not benefit from the rules, even someone like AM who was highly educated and well qualified and had a wife and children. 

[26]      The judge was entitled to reach the conclusion she came to for the reasons she gave.  It was clear she had properly considered the relevant statutory provisions (see paragraph 34 onwards).  Substance rather than form was what mattered (see paragraph 8).  The case also devoted some time to an analysis of when and how precariousness can arise (paragraph 20 onwards). 

[27]      VS (India) was referred to at some length.  It is an Outer House decision, though I was told a reclaiming motion had been enrolled.  The petitioner had come from India on a six month visa;  it expired and he became an overstayer.  He was detained, left the country and then returned.  He became engaged to a UK national, began cohabitation and intended to marry.  He relied on article 8.  The Minister refused his submissions and certified the claims as clearly unfounded under section 94(2) of the Act. 

[28]      Before the Lord Ordinary the arguments conflicted.  The petitioner maintained it was for the court to form its own view whereas the respondent maintained the matter was only one of review.  It was further argued that there had been no consideration of the article 8 case outwith the rules.  The Lord Ordinary looked closely at all the recent Scottish cases in an attempt to reconcile them (paragraphs 82 to 101). 

[29]      The problem was that the decision letter had not looked beyond the rules.  However, no factor could be identified which required consideration beyond the rules.  The position of the fiancée, the absence of a marriage and all other matters had been properly considered.  An admitted failure to state explicitly that there was no need to go outwith the rule was not a material error in law.  It would only have been a matter of form. 

[30]      Finally, I now look at the decision letters sought to be reduced.  They all postdate the decision of the First‑tier Tribunal in February 2014.  The first are numbers 6/1, 6/2 and 6/3 of process all of even date in February 2015 and all in the same terms.  The letters state (correctly) that the petitioner cannot qualify under the rules.  That point was conceded before me and is no longer a live issue.  What then do the letters say further?  They clearly consider article 8 for both private and family life and whether exceptional circumstances exist.  The close connection to India is noted as one of the rights of the child.  The word “proportionate” is used.  I do not regard any of the authorities cited to me, and which I have sought to analyse, as destructive of these decision letters. 

[31]      The next decision letter is number 7/2 of process dated 17 November 2015.  This letter proceeded on what was said to be a “fresh claim” earlier that month, and was looked at to see whether it qualified as a fresh claim.  The letter correctly sets out paragraph 353 which I have quoted elsewhere in this opinion.  There was no new material before the respondent and so all that could be considered was what had already been considered firstly by the tribunal and then by the respondent earlier the same year.  There is then a consideration of whether there are any exceptional circumstances and none are found.  It is true that the word “proportionate” does not appear.  In my opinion that is not fatal to the letter.  Butt is binding on me.  There, as here, the matters had been fully adjudicated.  Nothing new was emerging and so I conclude that the respondent correctly rejected what was put as a fresh claim.  The letter also says, correctly in my view, that there was no realistic prospect of success before an immigration judge.  Devaseelan is in point and I propose to follow it.  Accordingly I refuse reduction of the decision letters.  I will repel the plea-in-law for the petitioner and sustain that of the respondent.  The petition is dismissed and I reserve all questions of expenses.