Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 82
P1287/12	OPINION OF LORD TYRE in the Petition of A S Petitioner; For JUDICIAL REVIEW OF A DECISION BY THE SECRETARY OF STATE FOR THE HOME DEPARTMENT ________________

Petitioner: Byrne; Drummond Miller LLP

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

29 May 2013

Introduction

[1] The petitioner was born in Pakistan. In September 2003, when he was aged 14, he came to the United Kingdom with his family. According to his averments, he was enrolled in school by his parents but in 2005, because of physical and other ill treatment that he claims to have received at home, he ran away at the age of 16. Since then he has lived with friends at various locations in the United Kingdom. He has obtained employment in fast food outlets. An application made by him in 2009 for leave to remain was refused by the respondent. In October 2012 he was detained following an appearance in a magistrates' court in England in connection with certain motoring and other offences of which he has been convicted. In this petition he seeks reduction of a decision by the Secretary of State for the Home Department (the respondent) (i) to refuse him leave to remain in the United Kingdom, and (ii) to certify his human rights claim under section 94(2) of the Nationality, Immigration and Asylum Act 2002 as clearly unfounded. The consequence of such certification is that the petitioner has no right of appeal to an immigration judge from within the United Kingdom.

[2] The procedural history of this application is somewhat unusual. On 23 October 2012 the petitioner applied for leave to remain in the United Kingdom. The application was made under reference to paragraph 276ADE of the Immigration Rules, i.e. under the new Article 8 rules which were introduced with effect from 9 July 2012. The petitioner contended that he met the requirements of paragraph 276ADE(vi) in respect that he was aged 18 years or above, had lived continuously in the United Kingdom for less than 20 years, but had no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK. By letter to the petitioner's solicitor dated 2 November 2012 ("the November letter") the respondent refused the petitioner's application. The respondent considered that the petitioner had not demonstrated that he had no social, cultural or family ties with Pakistan and so did not fulfil the requirements of paragraph 276ADE(vi). The decision letter stated:

"In reaching this decision in respect of private life, it is considered that your client's circumstances are not exceptional in a way in which would render his removal from the country a breach of Article 8, because being separated from his friends and life here would not, given the evidence we have, have severe consequences for him. We do not have evidence to show that his relationships with his friends are in any way exceptional, let alone that he shares a dependency beyond normal emotional ties with any of them. We acknowledge, what is more, the (unsubstantiated) claim that he suffered domestic abuse as a child; however, he is now a man of almost 24 years of age and, for the reasons above, it is not unreasonable, let alone in contravention of Article 8, to expect him to return to Pakistan."

[3] The effect of introduction of the new Article 8 rules has been controversial and has given rise to differences of judicial opinion. For the purposes of the present petition it is not necessary for me to examine these differences of opinion in detail nor to express any view of my own on this contentious issue. It is, however, necessary for me to record as a relevant aspect of the background to this petition that in three appeals from the First Tier Tribunal, namely MF (Nigeria) [2012] UKUT 393 (IAC), Izuazu (Nigeria) [2013] UKUT 45 (IAC) and Ogundimu (Article 8 - new rules) (Nigeria) [2013] UKUT 60 (IAC), the Upper Tribunal (Immigration and Asylum Chamber) has held that where a claimant does not meet the requirements of the Rules, an immigration judge must then go on to make an assessment of whether the claimant's Article 8 rights are breached according to the criteria established by law.

[4] The present petition was lodged in December 2012, after the decisions in the first two of these three appeals had been published. One of the grounds of attack on the respondent's decision of 2 November 2012 was that she had unreasonably curtailed her consideration of Article 8 to the requirements of the Rules and had not gone on to consider Article 8 more broadly. In certifying the Article 8 application as clearly unfounded, she had erred in law in failing to consider what an immigration judge might decide if the judge considered Article 8 without reference to the formulation in the Rules.

[5] By way of response to this attack, the respondent issued a second letter to the petitioner, described in a covering letter as "a supplementary letter", on 14 February 2013 ("the February letter"). It bore to give further explanation of why the petitioner's claim was clearly unfounded in light of the recent Upper Tribunal decisions. The situation which the respondent was seeking to address was explained thus in the February letter:

"...As our letter of 2 November 2012 make clear it is not accepted that you meet the Immigration Rules and there are no exceptional circumstances which would make refusal of your application unduly harsh. Whilst the correctness of the approach taken by the Upper Tribunal in MF and Izuazu is not accepted, it is acknowledged that the First Tier Tribunal is bound by those decisions. Accordingly, when considering whether or not your case is clearly unfounded, at present it is necessary to consider whether that claim would be bound to fail before an Immigration Judge if the criteria established by existing case law is [sic] applied. For the reasons given below it is considered that it would be."

The February letter goes on to set out the reasons why the respondent considered that even if assessed against Article 8 on the basis of the general law, in accordance with MF (Nigeria) and Izuazu, the petitioner's claim remained clearly unfounded. The letter concluded: "The certificate under s 94(2) of the 2002 Act is maintained."

[6] Following receipt of the February letter, the petitioner amended his pleadings in the present application. The petitioner avers in his amended pleadings that a letter issued in the course of litigation which supplements inadequate reasons for a decision to certify as clearly unfounded should not be entertained by the court. This letter did not purport to be a reconsideration of the decision to certify. It was issued by a different office and did not - and could not - reflect the thought process of the decision maker who certified the claim as clearly unfounded in the November letter. In any event, esto regard could be had to the February letter, the claim should not have been certified and so the decision narrated in the letter should be reduced.

[7] At the First Hearing, counsel for the respondent accepted that if it was not legitimate to have regard to the February letter, then the prayer of the petition would have to be granted. Although the respondent's position remained that the three Upper Tribunal cases had been wrongly decided (an appeal in MF was due to be heard by the Court of Appeal in July 2013), it was accepted that for the time being they would be followed by an immigration judge because he or she would be bound by them. Accordingly, the respondent's decision to certify the Article 8 claim as clearly unfounded under reference only to the Rules and not to the established case law could not be supported.

Status of the letter of 14 February 2013

[8] It follows from the above that the first issue which I must address is whether, in deciding to certify the petitioner's Article 8 claim as clearly unfounded, the court should have regard to the February letter in addition to the November letter.

[9] Counsel for the applicant submitted that I should have no regard to the February letter. It was pointed out (i) that the reasons given in this letter were not those relied upon in the November letter to certify the claim as clearly unfounded; (ii) that the February letter was not a reconsideration of the petitioner's claim; (iii) that the letter was produced after commencement of litigation; and (iv) that it was written by a different official, this time in the respondent's litigation unit. The decision in the November letter was an "immigration decision" as defined by section 82(2) of the 2002 Act. As such it required, in terms of regulations 4 and 5 of the Immigration (Notices) Regulations 2003, to be in writing and to include or be accompanied by a statement of reasons for the decision. There was no provision in the legislation for providing additional reasons in a supplementary letter. Where, as here, there was a statutory duty to provide reasons as part of the notification of the decision, the court would normally interpret the legislation as having made the provision of adequate reasons a condition of the validity of the decision. Reference was made to Chief Constable, Lothian and Borders Police v Lothian and Borders Police Board 2005 SLT 315, Lord Ordinary (Reed) at para 70, and also to R (Nash) v Chelsea College of Art and Design [2001] EWHC Admin 538 at para 34 and Absalom v Governor of HM Prison Kilmarnock [2010] CSOH 109 at paras 13 and 14. The February letter could not insert reasoning into the November letter. The proper course would have been to acknowledge that the November decision was wrong in law and to make the decision afresh.

[10] Counsel for the respondent submitted that it was permissible for the court to have regard to the February letter. The authorities founded upon by the petitioner did not close the door entirely to the provision of supplementary reasons. In any event these cases were distinguishable: no question arose here of the respondent attempting retrospectively to provide additional reasons for the November decision. In effect what the respondent was saying in the February letter was this: "I consider that in the November letter I went about making the decision in the correct way, and I adhere to it and to the reasons I gave then. I have, however, reconsidered it and made a distinct assessment on the basis which you say is correct (with which I disagree). On that basis, and for the reasons which I give in this letter, my decision would still have been that an appeal to an immigration judge would be certain to fail. Accordingly the claim is still certified as clearly unfounded." It would not have been appropriate for the respondent to withdraw the November decision because she did not accept that the approach taken in that letter was wrong in law.

[11] In my opinion it is not legitimate for the court to have regard to the February letter. I reach this view because of the obviously conditional basis upon which it is written. It seems to me that the letter does not give notice of a decision that the respondent has made, but rather explains what decision the respondent would make on the hypothesis set out in the letter, namely that the petitioner's Article 8 claim fell to be determined not according to the Immigration Rules but rather according to criteria established by existing case law. As such the letter has, in my opinion, no status with regard to the decision taken to maintain the respondent's refusal of leave to remain. So far as certification as clearly unfounded is concerned, it respectfully appears to me that the respondent is trying to have it both ways. I agree with counsel for the respondent that the present case is not on all fours with the Chief Constable and other cases cited above, but it seems to me that, if anything, the reasoning in these cases applies a fortiori in the present circumstances where the decision-maker is not attempting to provide further reasons for the decision under challenge, but rather to provide reasons for a hypothetical decision taken on a basis different from that on which the decision under challenge was in fact taken and which the respondent still considers to have been the correct basis. The fact that the two letters were written by different officials seems to me to be of little significance in a case such as this where the second letter does not purport to provide additional reasons for the decision notified in the first letter.

[12] In the course of the hearing I inquired of counsel for the respondent whether, in the respondent's view, the February letter was an "immigration decision" as statutorily defined. In a note submitted after the hearing, it was confirmed on behalf of the respondent that the February letter was not an immigration decision and did not purport to be so. It was said, however, to constitute a new decision on the issue of certification in the light of the Upper Tribunal decisions mentioned above. That note was provided to the petitioner and counsel for the petitioner in turn submitted a note agreeing that the February letter found no accommodation within the statutory framework regulating the making of certification decisions. For my part I agree that the February letter is not an immigration decision within any of the categories in section 82(2). It is not appealable. That being so, it seems to me that there is nothing in the February letter to which a purported certification under section 94 can attach. In terms of section 94(1), the certification procedure applies "to an appeal under section 82(1) where the appellant has made... a human rights claim". It follows, in my view, that the purported certification in the present case could only apply to the immigration decision, i.e. the decision taken in November. The difficulty for the respondent, as it seems to me, is that the February letter makes clear that the certification is not intended to apply to the decision taken in November, taken under reference to the Immigration Rules, but rather to a hypothetical decision taken under reference to existing Article 8 case law.

[13] For these reasons the respondent's decision to certify the petitioner's Article 8 claim as clearly unfounded must, in my opinion, be considered solely under reference to the November letter. I have noted that it is conceded on behalf of the respondent that the reasons for certification given in that letter, when taken alone, cannot be supported. It follows that the respondent's decision to certify the claim as clearly unfounded under section 94(2) of the 2002 Act, contained in paragraph 13 of the November letter, must be reduced. For the sake of good order I shall reduce also the decision narrated in the February letter to maintain that certification.

Certification under section 94(2) on the basis of Article 8 case law

[14] In the course of the hearing I was fully addressed by both parties on the issue of whether, if the petitioner's Article 8 claim fell to be assessed under reference to the criteria established by existing case law, rather than by reference to the Immigration Rules, the respondent erred in law in certifying it as clearly unfounded. It seems appropriate for me to express my opinion briefly on this issue, albeit that in the light of what I have decided my views are obviously obiter.

[14] Counsel for the petitioner submitted that, when assessed on the basis of Article 8 case law, the respondent erred in law in certifying the claim as clearly unfounded. The test for certification was a very high one: the respondent required to be satisfied that the claim was so clearly lacking in substance that it was bound to fail: see e.g. R (Yogathas) v Secretary of State for the Home Department [2003] 1 AC 920, Lord Hope at para 34; ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348, Lord Carswell at para 58. The power of certification was described in these cases as "draconian". In a case such as the present one concerning an individual who had come to the UK during his childhood, the Tribunal would require to take into account the jurisprudence of the European Court of Human Rights, including Beldjoudi v France (1992) 14 EHRR 801, Lamguindaz v United Kingdom (1993) EHRR 213 and Maslov v Austria 1638/03, 23 June 2008. In the latter case the Court stated at paragraph 75:

"In short, the Court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion..."

Reference was also made to JO (Uganda) v Secretary of State for the Home Department [2010] 1 WLR, in which Maslov was applied by the Court of Appeal. Application of these decisions in the present case would require the Tribunal to have regard to the fact that the petitioner had arrived in the UK with his parents as a 14-year old child. His immigration and integration were involuntary. The years that he had spent in the UK since the age of 14 were formative years such that removal now would be more akin to exile than to enforced return to a homeland. He could not be said to have come to the UK with a view to circumventing immigration laws.

[15] On behalf of the respondent it was submitted that she had not erred in law. All factors relevant to the proportionality of the petitioner's removal had been considered. He had spent the first 14 years of his life in Pakistan and had spent only four years in the UK as a child. He was now a young adult and had demonstrated that he was a resourceful individual able to make his way in the world. No issue arose of being unable to speak a language. The petitioner's criminal convictions were relevant when assessing proportionality. In short there was nothing exceptional about the petitioner's case. The decisions referred to in support of the petitioner's argument were distinguishable on their facts.

[16] It was common ground that when addressing a challenge to the respondent's certification of a claim under section 94(2) as clearly unfounded, the court must decide for itself whether the claim is so clearly unfounded as to be certain to fail in an appeal to the First Tier Tribunal: R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, Lord Bingham of Cornhill at para 17; ZT (Kosovo) (above), Lord Phillips of Worth Matravers at para 23; MN v Secretary of State for the Home Department [2012] CSIH 63 at para 6. Had it been necessary to decide the point, I would have held that the respondent erred in law in certifying the petitioner's claim as clearly unfounded, when assessed against the established Article 8 case law. In my opinion the respondent's reasoning in the February letter fails to afford adequate recognition of the fact that the petitioner came to the UK as a 14 year-old child and family member who has since severed the tie with his family and whose experience of life as an independent and, latterly, adult individual consists wholly of residence in the UK. It is not, of course, for me to express a view as to whether an argument along these lines would be likely to succeed in an appeal to an immigration judge. In my opinion, however, having regard to the case law to which I have referred, it cannot be described as certain to fail when weighed against the need to maintain effective immigration control and the prevention of crime and disorder. For these reasons, had it been necessary to do so, I would have quashed the decision in the February letter to maintain the certification under section 94(2) of the petitioner's claim.