Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 83

P1222/16

OPINION OF LADY SCOTT

In the Petition by

B.C.

Petitioner

against

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Petitioner: Winter; Drummond Miller LLP

Respondent: Smith; Office of the Advocate General

2 June 2017

Introduction

[1]        This is a petition seeking reduction of a decision of the Secretary of State for the Home Department to refuse to treat further submissions in a human rights claim as a fresh claim.

[2]        The further submissions were based upon the petitioner’s family life, in particular his dependency on his family in the United Kingdom whereby his rights under Article 8 of the European Convention of Human Rights (ECHR) would be engaged and his removal would constitute a disproportionate interference in those rights.

Background of the Claim

[3]        The petitioner is Chinese.  He was born on 21 July 1990.  He arrived in the United Kingdom on 17 October 2010 and claimed asylum on 27 October 2010.  His asylum claim was refused on 12 November 2010 and his appeal against that decision was refused on 24 November 2010.  He then lodged further submissions and additional further submissions the latter of which were the subject of the petition.

[4]        The relevant Immigration Rule 353 is in the following terms:

“When a human rights or asylum claim has been refused 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.”

The Facts

[5]        The petitioner was born in China and from a young age lived with his grandparents as his parents had moved to the UK.  Only his grandfather (aged 83) is left in China.  The petitioner has been living with his parents and sister, who are settled within the UK, for about two and a half years.  He is financially dependent on his family and claims in his further submissions that he is dependent for care and emotional support from them, due to his mental health difficulties.  He has long suffered from a neurological condition which causes chronic motor and vocal tics including grunting, squeaking and twitching.  He receives appropriate treatment.  These symptoms had led to deteriorating mental health difficulties of depression and anxiety (as rehearsed in the reports and supporting documentation at 6/2 of process).

The Decision under Review

[6]        By letter dated 3 October 2016 the respondent refused to treat the further submissions as a fresh claim (No 6/3 of process).

[7]        In the decision letter under the heading of Exceptional Circumstances (page 6) the respondent states the following :

“Consideration is given to your claims that you have been re-united with your family which consists of your Father, Mother and younger sister.  Family life does not usually engage Article 8, in relationships between adult family members, such as parents and their adult children...  except in cases of unusual or exceptional dependency.  It is not considered that there is an unusual or exceptional dependency in your case.”

[8]        This was repeated in the respondent's letter of 18 November 2016 (No 6/5 of process):

“This matter has been considered on many occasions and it is commonly accepted that family life would not normally exist at all between parents and adult children within the meaning of Article 8 in the absence of further elements of dependency which went beyond normal emotional ties”

The Issues

(1)  Did the respondent err in law in her decision to refuse the further submissions on the basis that family life under Article 8 of the ECtHR is not usually engaged between adult members except in cases of unusual or exceptional dependency?

(2)  Did the respondent err in the assessment of proportionality?

(3)  Can it be said that the respondent, absent the error, would have reached the same decision?

(1)   Did the respondent err in law in her decision to refuse the further submissions on the basis that family life under Article 8 is not usually engaged between adult members except in cases of unusual or exceptional dependency?

[9]        It was agreed between parties that what constitutes family life within the meaning of Article 8 was fact sensitive — Gurung at [44]. It was also agreed that family life could include adult children.  The respondent argued that the case law in the situation of adult children reflected the view that further elements of dependency are required and she relied upon the observations of Sedley LJ and Arden LJ in Kugathas at [14] and [25] rehearsed in Ghising [2012] UKUT 00160 (IAC) at [62].

[10]      But it was not really in dispute that nowhere in the case law is it suggested that there was a legal test of unusual or exceptional dependency which fell to be applied.

[11]      The respondent's primary submission was that this expression was used as no more than a reference to the usual position in case law which suggests for adult children there is a requirement for dependency or more than the usual family ties.  It was not a legal test being applied.  It merely reflected that if there were nothing unusual no adult claimant could engage Article 8.  As such the observations regarding “unusual and exceptional dependency” did not fall to be read as the application of a legal test.

[12]      I cannot accept this submission.  In my view the plain reading of the decision letters rehearsed above is that the basis of refusal of the claim is the absence of the criterion of “unusual or exceptional” dependency.  This suggests those criterion are being applied as a requirement or at least a critical factor and as such an elevated legal test is being applied.  It fails to approach family life as fact sensitive - see Ghising supra at [53] and [55] and Gurung v Secretary of State for the Home Department [2013] 1 WLR 2456 at paragraphs [44-46].  It introduces a higher legal test to be met which is not justified in the case law.  That is an error of law.

[13]      Accordingly I am satisfied that the Secretary of State has misdirected herself in law in her evaluation as to whether or not the right to family life under Article 8 is engaged which goes to the root of the decision (see generally Wordie Property Co v Secretary of State of Scotland 1984 SLT 345, LP (Emslie) at 347-8).

(2)   Did the respondent err in the assessment of proportionality?

[14]      The petitioner submitted the assessment of proportionality fell into error because of the respondent had already decided family life was not engaged and this decision was at the forefront of the Secretary of State's reasoning in her determination.  The petitioner made reference to the approach taken to the identified error in the assessment of the credibility of the claimant in the opinion of Lord Carloway in Abel Salam Hamden v SSHD [2006] CSIH 57 at paragraph [15].

[15]      In this context it was submitted that it cannot be said in the circumstances that the proportionality assessment would be the same.  The circumstances relied upon were the petitioner’s mental health in respect of which he receives support here and the fact he only has one elderly relative in China.  In any event it cannot be said in these circumstances that there is more than a fanciful prospect of success before another Immigration Judge.

[16]      The respondent in reply highlighted that the petitioner's re-kindled relationship has only been established for 2 and half years whilst an adult.  He has spent the majority of his life in China.  His mental health difficulties did not mean he could not receive appropriate medical attention in China and he would not be without support from his family here albeit by visits and ongoing contact.  Counsel for the respondent emphasised that where, as here, family life is precarious a very strong or compelling claim is required to outweigh the public interest in immigration control.  (Lord Reed, R (Agyarko) v Home Secretary (SC) (E) 2017 WLR at [57].

[17]      Whilst I accept that the weighing up of the relevant factors within the assessment of proportionality requires a compelling claim I also have to be satisfied a proper assessment of proportionality was undertaken by the Secretary of State.  That assessment of proportionality follows from the engagement of Article 8.  It involves weighing the nature and strength of family ties and the mental health dependency, factors already rejected as not being sufficient to engage Article 8.  I accept the petitioner’s submission that it is difficult to see how the initial decision could be said to have no material effect on that assessment.

(3)   Can it be said that the respondent, absent the error, would have reached the same decision?

[18]      Once an error of law is identified as I have found here, the question for me is whether the Secretary of State would inevitably reach the same decision.  I have concluded that cannot be said here.

[19]      In respect of the proportionality assessment, assuming it was not tainted by the initial error, I recognise the weighing up of the competing interests may fall toward rejection of the claim, but not inevitably so.  There is substance in the argument that the dependency here is significant in view of the support for the vulnerabilities of the petitioner’s mental health received from the family in the UK. 

[20]      I also agree with the approach of the Extra Division in (Khan) in the approval of the observations of the Deputy High Court Judge in R (Ganesabalan) v Secretary of State for the Home Department (para 44):

“It matters that the Secretary of State approaches decisions lawfully, asking herself the legally relevant questions, having regard to legally relevant considerations and giving legally adequate reasons.  It matters, in my judgment, that the Secretary of State is the front-line decision-maker entrusted with addressing these considerations, and, on the face of it, the claimant was entitled, in my judgment, to a decision which demonstrably did so.  The decision in this case demonstrably did not do so and I am not prepared to refuse judicial review on the basis that the decision would inevitably have been the same had the discretion been addressed.”

This observation is pertinent here where the error introduces the obstacle of an elevated and unjustified legal requirement in the way of a claim.

Conclusion

[21]      Accordingly I uphold the petitioner’s plea in law in so far as it reduces the decision of 3 October 2016 by the Secretary of State.  I do not consider it appropriate or necessary to include the letter of 18 November 2016.