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THE PETITION OF NAT FOR JUDICIAL REVIEW OF A DECISION OF THE SECRETARY OF STATE FOR THE HOME DEPARTMENT TO DECLINE TO ACCEPT THE PETITIONER HAS MADE A FRESH CLAIM [2022] ScotCS CSOH_5 (18 January 2022)
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OUTER HOUSE, COURT OF SESSION
[2022] CSOH 5
P498/21
OPINION
OF LORD BRAILSFORD
In the petition of
NAT
Petitioner
For Judicial Review of a decision of the Secretary of State for the Home Department to
decline to accept the petitioner has made a fresh claim
Pursuer: Caskie; Drummond Miller LLP for Andrew J Bradley & Co
Defender: Maciver; Office of the Advocate General
18 January 2022
[1]
The petitioner seeks Judicial Review of a decision of the Secretary of State for the
Home Department to decline to accept the petitioner has made a fresh claim. The
respondent is the Advocate General for Scotland. The specific order sought is the reduction
of a decision dated 19 April 2021.
1
Factual matrix
[2]
The petitioner is a citizen of Vietnam. She arrived in the UK in August 2008. She
married her husband, a British citizen, and was granted indefinite leave to remain in the UK
1
Number 6/1 of process
2
in January 2014. The petitioner and her husband have a child who was born in January 2009
and who is a British citizen.
[3]
On 30 January 2017 the petitioner was sentenced to four years imprisonment on a
charge of being concerned in the production and supply of a Class B drug. As a
consequence of this conviction the Secretary of State decided to deport the petitioner and
issued the appropriate decision. The petitioner appealed against this decision to the First-
tier Tribunal (FtT). That appeal was successful but challenged by the Secretary of State. In a
decision dated 31 December 2019 the Upper Tribunal ("UT") held that the FtT had erred in
law.
2
The petitioner's appeal was dismissed on its merits.
[4]
By letter from her agents dated 6 April 2021 the petitioner made further
representations in light of a decision by the Secretary of State to remove her from the UK.
3
In response by letter dated 19 April 2021 the Secretary of State decided that the new
representations did not amount to a fresh claim and determined not to revoke the
deportation order made in respect of the petitioner.
4
That decision is the subject matter of
the petition under consideration.
Relevant legislative and regulatory provisions
[5]
Paragraph 353 of the Immigration Rules provides as follows:
"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:
2
Number 6/5 of process.
3
The petitioner's representations from number 6/2 of process.
4
Number 6/1 of process.
3
i)
had not already been considered;
ii)
taken together with the previously considered material, created a
realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas."
[6]
Section 55 of the Borders, Citizenship and Immigration Act 2009 provides:
"55
Duty regarding the welfare of children
(1)
The Secretary of State must make arrangements for ensuring that-
(a)
the functions mentioned in subsection (2) are discharged having
regard to the need to safeguard and promote the welfare of children who are
in the United Kingdom
(b)
Any services provided by another person pursuant to arrangements
which are made by the Secretary of State and relate to the discharge of a
function mentioned in subsection (2) are provided having regard to that need.
(2)
The functions referred to in subsection (1) are-
(a)
Any function of the Secretary of State in relation to immigration,
asylum or nationality;
(b)
Any function conferred by or by virtue of the Immigration Acts or an
immigration officer;
(3)
A person exercising any of those functions must, in exercising the function,
have regard to any guidance given to the person by the Secretary of State for the
purpose of subsection (1)."
[7]
Section 117C of the Nationality, Immigration and Asylum Act 2002 provides as
follows:
"117C Article 8: Additional considerations in cases involving foreign criminals
(1)
The deportation of foreign criminals is in the public interest.
(2)
The more serious offence committed by a foreign criminal, the greater is the
public interest in deportation of the criminal.
4
(3)
In the case of a foreign criminal ("C") who has not been sentenced to a period
of imprisonment of 4 years or more, the public interest requires C's deportation
unless Exception 1 or Exception 2 applies.
(4)
Exception 1 applies where
(a)
C has been lawfully resident in the United Kingdom for most of C's
life,
(b)
C is socially and culturally integrated in the United Kingdom,
(c)
There would be very significant obstacles to C's integration into the
country which C is proposed to be deported.
(5)
Exception 2 applies where C has a genuine and subsisting relationship with a
qualifying partner, or a genuine and subsisting parental relationship with a
qualifying child, and the effects of C's deportation on the partner or child would be
unduly harsh.
(6)
In the case of a foreign criminal who has been sentenced to a period of
imprisonment for at least 4 years, the public interest requires deportation unless
there are very compelling circumstances, over and above those described in
Exceptions 1 and 2
(7)
The considerations in subsections (1) (2) (6) are to be taken into account
where a court or tribunal is considering a decision to deport a foreign criminal only
to the extent that the reason for the decision was the offence or offences for which the
criminal has been convicted."
Petitioner's submissions
[8]
The petitioner's submissions fell into two distinct parts. First, argument based on the
respondent's decision letter dated 19 April 2021.
5
A second line was predicated on a
consideration of section 55 of the Borders ,Citizenship and Immigration Act 2009 ("the 2009
Act"). I deal with these arguments separately.
5
Number 6/1 of process
5
(i)
The decision letter dated 19 April 2021
[9]
The present petition was a challenge to a decision in which the Secretary of State had
declined to accept that representations made by the petitioner amounted to "further
submissions". Claims of this nature arise under paragraph 353 of the Immigration Rules. In
terms of these rules the Secretary of State required to address three questions; (a) should she
grant leave at her own hand, (b) if the answer to that was in the negative, was there
anything new in the representations which would qualify the claim and (c) if there was new
material did that, in combination with the existing material, give rise to the applicant
having a realistic prospect of success in an appeal.
[10]
The starting point for the argument was that in the decision letter the Secretary of
State was said to have failed to recognise that in dealing with the issue of whether the new
material in combination with the existing material could give rise to a realistic prospect of
success in an appeal there were five considerations. . These were that a judge could:(i) not
misinterpret the law as it was contended the Secretary of State did; (ii) make their own
appraisal of the facts giving the evidence such weight as they considered appropriate and
not that which was attached to it by the Secretary of State; (iii) not fail, as it was contended
the Secretary of State did, to have regard to relevant matters; (iv) give greater weight to the
evidence supportive of the petitioner's petition than had been given to it by the Secretary of
State; (v) overall conclude that the petitioner's removal would be unlawful.
[11]
Having set out that position counsel for the petitioner then turned to consider the
terms of the decision letter challenged. As a matter of generality it was observed that the
"greater part", I assume the submission meant in quantitative and not qualitative terms, of
the letter set forth the Secretary of State's conclusions as to why she did not consider it
appropriate to grant the petitioner leave to remain in the UK. This part of the letter was said
6
to be addressing the first question that the Secretary of State required to answer, should she
grant leave to remain at her own hand. Counsel indicated that he took no issue with this
aspect of the decision letter. It was accepted that the overall conclusion in relation to that
question reached by the Secretary of State was one which was open to her , albeit that
acceptance was, somewhat grudgingly, caveated by use of the word "just".
[12]
The second point made by counsel was that the petitioner's appeal against
deportation had been allowed by the FtT but that the UT reversed that decision on appeal
after reaching its own decision as to the weight to be given to the various factors involved in
deciding whether the original decision was proportionate. That is that, as defined in the
Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") it would be "unduly harsh"
to require the child to go to Vietnam and "unduly harsh" for the child to remain in the UK
without her mother
6
and that there are "very compelling circumstances"
7
over and above
that which render the decision to deport disproportionate. The submission on behalf of the
petitioner was that there was a realistic prospect, in respect of both sections 117C(5) and (6)
of those tests being met and in reaching a contrary conclusion the Secretary of State had
demonstrated a failure to apply anxious scrutiny and that there was a realistic prospect of a
judge of the FtT determining the matter in favour of the petitioner. It was advanced as an
important factor in consideration of that argument that the petitioner's child was 11 at the
date of the original decision and was now 13 years of age, a matter which had not properly
been considered or evaluated.
6
Section 117C (5) of the 2002 Act
7
Section 117C (6) of the 2002 Act
7
[13]
The argument was developed by reference to the decision in HA (Iraq) v Home
Secretary
8
. The decision in this case had been issued by the Court of Appeal of England and
Wales some 9 months after the UT decision in the petitioner's appeal. I did not understand
the ratio of that decision to be a matter of dispute. The UT had proceeded, it was contended,
on the basis that the case before it was of a kind, or perhaps more accurately raised issues
involving the "undue harshness" test in the context of dependent children, which were
commonly encountered in deportation cases.
9
Following HA (Iraq) (Supra) this was as a
matter of law the incorrect approach. It was submitted to be clear that following that case
each tribunal required to make its own assessment of the case before it, not proceeding to
treat it as merely an example of a type of case commonly encountered. The alteration in the
legal approach precipitated by HA (Iraq) (Supra) was said to give rise to a realistic prospect
of a different decision being reached.
[14]
The primary reason lying behind this submission, was, it was advanced, that there
was no indication of how primary consideration had been given to the petitioner's child's
best interests and it was not explained how the effective termination of the regular
relationship with the child's mother was outweighed by the public interest in the
petitioner's deportation.
10
It was noted that the UT had recorded the views of the child but
given no explanation as to how those views had been weighed in their overall assessment of
proportionality. The position advanced was that the UT required, following the approach
accepted as necessary in HA (Iraq) (Supra) to assess in what respects, and to what degree,
moving to Vietnam would be contrary to the petitioner's daughters best interests. The UT's
8
9
See number 6/5 of process at paragraphs 15 and 51.
10
See number 6/5 of process at paragraphs 46 and 51.
8
conclusion that it was not unduly harsh for the petitioner to relocate to Vietnam or for the
whole family to relocate to that country, was, it was contended, insufficiently reasoned in
the light of the absence of consideration of those factors. The decision complained of, which
did no more than accept the position advanced by the UT, repeated and made the same
errors.
(ii)
Consideration of the position of the child under section 55 of the Borders,
Citizenship and Immigration Act 2009
[15]
The submission in relation to this chapter commenced with the observation that on
the construction of counsel for the petitioner, the Secretary of State, in the decision letter
complained of, did not consider that she was obliged to consider the position of the child of
the petitioner in accordance with section 55 (3) of the 2009 Act. The Secretary of State's
reasoning as to why she had no obligation to consider the child's position under the said
statutory provision was that the position of the child had been considered in 2019 and she
had no continuing obligation in April 2021 because such matters were not referred to in the
further submission.
[16]
That approach was contended to represent an error. The proposition was quite
simply that obligations under section 55 (3) of the said Act of 2009 did not arise because of
further submissions made by an individual, but as a result of a legal obligation imposed
upon the Secretary of State by parliament in the said statutory provision. It was said that the
Secretary of State's obligations were both to the child and to the maintenance of law by
complying with the instruction of parliament and meeting obligations arising from Article 8
ECHR. The Secretary of State required to demonstrate that she had conscientiously and
adequately "balanced the scales" before weighing the best in terests of the child in the overall
9
proportionality assessment. That exercise had not been carried out in this case and the
Secretary of State had accordingly erred as a matter of law.
Respondent's submissions
[17]
Counsel for the respondent initially set forth his overview of his case. This was
founded on a proposition, which as I understood it was not contentious, that factual
findings by the UT cannot as a matter of law be challenged in any subsequent tribunal
11
. It
was said that this was important in the context of the current petition because consideration
of the petitioner's representations dated 6 April 2021
12
which formed the basis upon which
the Secretary of State's decision, which is challenged, was made, contained no reference to
any new matter. In essence the only thing that had changed between the date of the UT
decision and the Secretary of State's decision which is challenged was the decision in HA
(Iraq) (Supra). The respondent did not dispute that following that decision the UT decision
could no longer be said to represent a correct statement of the law. That consideration had
been taken into account in the decision complained of. Effectively beyond considering the
effect of HA (Iraq) (Supra), which the Secretary of State had done, there was no new material
for the Secretary of State to consider.
[18]
A second general point was made to the effect that the oral submission of counsel for
the petitioner had approached the question of undue harshness in relation to the effect of the
petitioner's deportation on her child in a manner which was, as I understood the
proposition, influenced to an extent which was not justified by considerations which were
derived from family law. It was suggested that this over emphasis, or reliance, on family
11
Devaseelan v Secretary of State for the Home Department [2002] UKIAT 702 at paragraph 41.
12
Number 6/2 of process.
10
law either ignored or was inconsistent with the primary consideration of section 117C of the
Act of 2002 that the deportation of foreign criminals was in the public interest.
(i)
The "fresh claim" test
[19]
In relation to the fresh claim test, or in the context of the present case, the absence of
any new or fresh material for the Secretary of State to consider the courts attention was
initially drawn to the language of paragraph 353 of the Immigration Rules. The court was
reminded that the correct approach to application of this rule is to be found in a decision of
the Court of Appeal of England and Wales in WM (DRC) v The Secretary of State for the Home
Department
13
. The respondent's proposition was that properly construed the petition did not
amount to a fresh claim analysis of the Secretary of State's decision but was instead a legal
analysis considering the effect of HA (Iraq) (Supra) on the law. HA (Iraq) (Supra) had
determined that it was not a correct approach for a tribunal to equate "undue" hardship for
a child with that going beyond that which was to be ordinarily or necessarily expected in a
removal decision. That matter was considered by the Secretary of State, her conclusion
being that in the present case the UT had not failed to meet the test set forth subsequent to
its decision in HA (Iraq) (Supra) and that because the tribunal had properly assessed the
child's circumstances and found having done so th at removal would not be unduly harsh
due to the care that she had already received and would continue to receive in her mother's
absence. The submission proceeded that it was important to have regard to the fact that the
UT considered carefully the circumstances of the petitioner's case and in that regard had
also considered the circumstances of the child. In light of these considerations there was
13
[2007] Imm AR 307 paragraphs 6-11
11
submitted to be no error-in-law disclosed in either decision of the UT, or more importantly
for present purposes, the decision of the Secretary of State.
(ii)
Best interests assessment
[20]
The submission on behalf of the respondent was that the petitioner's argument in
this regard had not been made out and that is because there was a best interests assessment
undertaken in the course of the UT decision which the Secretary of State was bound to
follow. Further, and importantly, the petitioner did not make any representations on the
point to the Secretary of State and accordingly there was nothing to review. The position
advanced was that the child's best interests were considered by the Secretary of State and by
the UT at the time of the deportation decision and appeal against it at the end of 2019. It was
noted that the UT made express references to the child's views. It was maintained that the
absence of any reference on this point in the petitioner's further representations of
April 2021 made it clear that the child's best interests were as assessed by the UT and,
further, that the Secretary of State was correct in determining that the UT had not erred in
making its assessment in that regard. By adopting this approach the Secretary of State took
into account the child's best interests.
[21]
There was a further submission on behalf of the respondent in relation to this aspect
of the argument. The court accepted that there was recent Inner House authority, ZG
China,
14
which provided guidance, binding on this court, as to the approach to be taken in
considering the substance of the duties imposed by section 55 of the Act of 2009. That
guidance is in the following terms:
14
12
"What was important was whether there was compliance with the substance of the
section 55 duties. What such compliance requires in a particular case is intensely fact
sensitive... Sometimes there may be nothing in an applicant's representations which
suggests a need for the respondent to obtain further information about a child, or
that there is a need to ascertain a child's views independently of the child's parents"
15
It was submitted that that guidance covered the situation in the present case. Because of the
UT's assessment and determination in relation to the child's interests there was nothing
further which the Secretary of State required to do in that regard.
Conclusion
(i)
Decision letter dated 19 April 2021
[22]
The petition under consideration concerns a further submissions application made
by the petitioner and rejected by the Secretary of State. In relation to the application the
Secretary of State was required to apply paragraph 353 of the Immigration Rules, which
entailed considering the fresh submissions and determining whether to accept or reject
them. If rejecting the submissions she was then required to determine whether they
amounted to a fresh claim. Submissions would only amount to a fresh claim if "significantly
different" from material already considered. "Significantly different" in the context of the
rule means matter which has not already been considered and taken together with that
already considered created a realistic prospect of success.
[23]
The petitioner is a foreign criminal. The deportation of foreign criminals is in the
public interest.
16
The more serious the offence committed by the foreign criminal the greater
the public interest in the deportation of that person.
17
The petitioner required to be deported
15
At paragraph 32
16
2002 Act section 117C (1)
17
2002 Act section 117C (2)
13
unless she fell within either of two exceptions stipulated in the 2002 Act.
18
The factual
circumstances in this case are that the petitioner is married and that she and her husband are
the parents of a daughter, age 13 at the date of the substantive hearing in this petition. There
was no dispute that in this case the petitioner had a genuine and existing relationship with
her husband and the same quality of parental relationship with her daughter. The
petitioner's case accordingly fell within the category of Exception 2 of section 117C of the
2002 Act,
19
which, in the factual context of this petition , meant that her deportation would
not be required if the effect of that act would be "unduly harsh" on the petitioner's
daughter. There is one further consideration, arising out of the relevant statutory
provisions, that is because the pursuer was sentenced to 4 years imprisonment her
deportation is required in the public interest unless there were "very compelling
circumstances" over and above the condition under the exception already outlined.
20
[24]
In relation to the consideration of the approach to rule 353 the issue between the
parties before me was fundamental. I narrate counsel for the petitioners approach in
paragraph [10]. As I understood him counsel for the respondent did not materially disagree
with his opponent's approach to construction of the rule and save for the last took no issue
with five propositions which were said to arise out of that construction. Counsel for the
respondent's approach was, at bottom, that there was no new material which the Secretary
of State required to consider.
[25]
Approached in that way there is one matter which occasions me some concern. My
concern relates to the position of the petitioner's child. In essence, this same point features
18
2002 Act section 117C (3)
19
2002 Act section 117C (5)
20
2002 Act section 117C (6)
14
in my consideration of the decision letter under challenge. To avoid repetition I will deal
with the point in the context of that matter, to which I now turn.
[26]
The decision letter plainly considers the position of the child both in the context of
whether it would be "unduly harsh" on that child if she remained in the United Kingdom
whilst her mother was deported to Vietnam and in the alternative, if she and her father
accompanied her mother to Vietnam if that person was deported. It is also fair to observe
that the letter considered the child's position in relation to the more rigorous test applied in
the context of persons, such as the petitioner, who were sentenced to imprisonment for
4 years or more. Two matters emerge, in my opinion, from the Secretary of State's approach
to these issues. First, it is noted that the views of the child on this issue were obtained.
Second, it is noted that at the date when the child was examined by an appropriate medical
professional she gave a history of bedwetting and of generalised anxiety. The Secretary of
State's information in relation to these matters, and the basis of what she states about them,
is derived entirely from the findings of the UT. It is also fair to observe that the Secretary of
State recognised that since the decision of the UT the approach that body had taken to
characterisation of the test to be applied to undue harshness had, as a matter of law,
changed by reason of the decision in HA (Iraq) (Supra). I take no issue with the Secretary of
State's approach to that question. More difficult is the fact that the Secretary of State, whilst
recognising the existence of medical issues, made no attempt to ascertain whether those
remained the same, had resolved, or had deteriorated since the date of the UT decision
some 19 months prior to the Secretary of State's consideration of the matter. As I
understood it counsel for the respondent's position in relation to my concern was in the first
place to again make the point that the issue of the child's health had not been raised in the
fresh submissions. Second, counsel argued that in any event given the relatively short
15
period between the decision of the UT and the Secretary of State's deliberations on the
matter there was, particularly in the absence of the matter being drawn directly to the
attention of the Secretary of State, no requirement on the Secretary of State to take any
further action.
[27]
I do not accept the submission on behalf of the respondent on this point. Whilst, as
already indicated, I accept that the further submissions did not raise the point of the child's
health I do not consider that absolves the Secretary of State from requiring to consider the
matter. I formed this view because it was clear that the issue of the child's health was
founded upon by the petitioner and considered by the UT. It was therefore a matter which
was before the Secretary of State when she came to consider the fresh submissions. Having
regard to the nature of the medical complaints relied upon, both having a potential
psychological basis, I would regard it as necessary for a decision maker to consider these
matters as at the time the decision is made. Counsel for the petitioner posited his argument
on this point in even stronger terms. His primary submission was that the straightforward
fact that the child was 11 at the date of the UT's decision and 13 at the date the matter was
considered by the Secretary of State rendered it necessary for that person to make enquiries
into the child's health. Whilst I accept that it is within judicial knowledge that children
develop, physically, cognitively and in other respects over time I would be unwilling to state
whether the passage of time of itself would place an obligation on a decision maker to
reconsider a matter afresh. Each case must be considered on its own facts and
circumstances. Applying that to the present case however it seems plain that the situation is
of a girl entering into her adolescent years who in addition to that factor had a medical
history, albeit 19 months prior to the decision maker's deliberations, suggestive of the
possibility of psychological issues. Whilst, as was accepted and indeed founded upon by the
16
UT, there may be reasons for psychological problems unrelated to the issue of deportation of
her parent it is both possible that the proposed deportation has had an effect on the child's
psychological health or that deportation might have an effect on the child's future
psychological health. In that regard it is fair to point out that the clinician who reported to
the UT on the girl's condition expressly recognised the possibility of future psychological
health problems for the child in the event of her mother's deportation. All these factors
render me to consider that it was incumbent on the Secretary of State to investigate this
matter further.
[28]
At this point it is only fair that I observe that counsel for the respondent, in dealing
with this line of argument, criticised counsel for the petitioner in presenting his submissions
on the point in a way which were, I use counsel's own language, "over influenced by
considerations of family law". His proposition was that this was a case involving
immigration law and, as I understood it, counsel for the petitioner was not justified in
relying heavily on modern developments in family law in relation to children's rights and
the approach courts should take, and do take in family law cases, to those matters. I do not
accept counsel for the respondent's propositions in this respect. In my opinion all areas of
law require to consider aspects of jurisprudence from other branches of law and apply them
in appropriate cases. It is, in my view, correct to observe that family courts, at the highest
level, have developed a more "child-centric" approach to interpretation of children's rights
in recent years. It is also true to observe that children's rights are not a direct concern of the
2002 Act or for that matter section 117C of that legislation. Children's rights may however,
as they are in the present case, become a factor in application of the provision under
consideration if a child is affected by operation of the legislation. The legislation in fact
17
makes such consideration a necessary feature (section 117C (5)). I accordingly consider that
the argument on this point presented by counsel for the petitioner is well-founded.
(ii)
Section 55 of the 2009 Act
[29]
My opinion in relation to this aspect of the argument is primarily determined by my
comments in the previous paragraphs concerning the Secretary of State's failure to freshly
consider the position of the child. I need not repeat my position again. Notwithstanding the
preceding paragraph I accept that the Inner House has very recently considered the extent of
the duty incumbent upon the decision maker under section 55 of the 2009 Act. That
authority is ZG China
21
which I have already quoted in paragraph [21] hereof.
[30]
The decision in ZG (China) (Supra) is, of course, binding upon me. I accept that
determination of whether or not further enquiry may be required by the decision maker is a
question which is highly fact sensitive. I consider having regard to the factors I have already
narrated the petitioner's daughter's health issues are sufficiently relevant and important to
impose an obligation upon the Secretary of State to make further enquires in relation to the
health of the child.
[31]
On the basis of the foregoing, I am satisfied that the Secretary of State erred-in-law in
failing to properly consider and obtain information in relation to the health of the
petitioner's child. I shall accordingly reduce the decision dated 19 April 2021 to refuse to
accept the petitioner has made a fresh claim.
21
