Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 31
P1307/12	OPINION OF LORD BURNS in the Petition of MbK (ap) Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department ________________

Petitioner: Party

Respondent: MacGregor, Advocate; Office of the Advocate General

20 February 2014

[1] In this action the petitioner seeks judicial review of a decision of the Secretary of State for the Home Department dated 16 January 2013 which refused to accept further representations made on his behalf as a fresh claim for asylum. Although the petitioner had been represented at a previous stage of these proceedings, when the matter appeared before me on 31 January 2014 for a continued first hearing, he was unrepresented. He addressed me in support of his petition through an interpreter, Mr Goma. The respondent was represented by Mr McGregor, advocate.

Background

[2] The petitioner arrived in the United Kingdom on 18 February 2007 and claimed asylum. His claim was refused on 19 March 2007 and his appeal to the First-tier Tribunal (FTT) was dismissed on 4 May 2007. He was subsequently refused leave to appeal to the Court of Session in June 2009. He lodged fresh representations by letter from his solicitors dated 7 December 2009. Those fresh representations were rejected by letter dated 30 January 2010. By letter dated 26 August 2010, the petitioner lodged further fresh representations but these were again rejected by letter dated 10 September 2010. On 3 June 2011 the petitioner presented a petition for judicial review against the rejection of fresh representations but that was withdrawn on 27 October 2011. On 16 December 2011 the petitioner again lodged fresh representations which were again rejected by letter dated 23 December 2011. On 18 December 2012 the petitioner lodged a second petition for judicial review which sought to challenge the decision of 23 December 2011. In that petition, the petitioner advanced a number of grounds of challenge to the decision letter of 23 December 2011 which had not been included in his letter of representations to the Secretary of State of 16 December 2011. However, the Secretary of State considered those challenges as an application for a fresh claim but decided that there was no merit to them and issued a decision thereupon dated 16 January 2013. Thereafter, the Secretary of State issued a further refusal letter dated 12 March 2013 which gave further consideration to the petitioner's submissions in the light of recent Upper Tribunal decisions in Izuazu (Nigeria) 2013 UKUT 45 and MF (Nigeria) 2012 UKUT 00393 which concerned the new immigration rules. That letter also concluded that there was no merit in the petitioner's representations contained in the letter of 16 December 2011 and those contained within the petition. It was also concluded that there no realistic prospect of an immigration judge coming to a different conclusion.

[3] In the present petition (which is an adjusted version of the second petition mentioned above) challenges are made to the decision letter of 16 January 2013. The petitioner contends that up to date country guidance material relevant to the Democratic Republic of Congo (DRC) was not taken into account and reference is made to a Justice First report of 24 November 2011 entitled "Unsafe Return". It is said that in the earlier decision of 16 December 2011 the respondent failed to have regard to that report, despite it being within her knowledge. Further, since the petitioner required certain documents in order to obtain a travel document to allow him to return to the DRC and he did not possess such documents, he could not return there. The Secretary of State failed to take that circumstance into account when considering the petitioner's representations. The petitioner contends that he is effectively unremovable from the United Kingdom for that reason. It is said that that circumstance is a relevant one when the petitioner's claim that he has established private life under article 8 of the European Convention for Human Rights (ECHR) is considered. His established private life and the fact that he was unremovable from the United Kingdom meant that he had a potentially successful claim under article 8 and that an immigration tribunal could so conclude. It is also said that the Secretary of State took into account an irrelevant consideration namely that he, the petitioner, could return to the DRC voluntarily. It is said that that is not possible because of the lack of documentation.

[4] In addition, it is contended that the Secretary of State has failed to consider the delay in taking action to remove the petitioner from the United Kingdom and has at least tacitly permitted him to stay for a period of over 3 years. During that time she made no effort to enforce the petitioner's removal. It is said that the Secretary of State acted irrationally in failing to have regard to that delay and that an immigration judge would not proceed upon the same basis. It is contended that the Secretary of State erred in assessing the proportionality of removal of the petitioner having regard to the nature and seriousness of any offences committed by the petitioner, the length of stay that the petitioner has had in the United Kingdom, the nature and extent of his private life within the United Kingdom and the fact that he is unremovable.

[5] Reference is made in article 53 of the petition to the Secretary of State's further decision of 12 March 2013. The petitioner contends that the Secretary of State required to follow the Upper Tribunal cases of MF (Nigeria) and Izuazu cited above. It is contended that the exercise performed in the light of those cases and contained in the decision letter of 12 March 2013 is also unreasonable, irrational and unlawful.

The Petitioner's Submissions

[6] In his submissions to me, the petitioner maintained that, if deported to the DRC, he would be in considerable personal danger due to the nature of the regime there. He referred to an incident which had recently occurred where a supposed coup d'état had been savagely put down. He referred to photographs of himself that were taken when he was arrested in DRC. The possession by the authorities of those photographs placed him in permanent danger. Accordingly, a decision as to whether or not to refuse his asylum claim ought to be taken on the basis of what is happening on the ground in that country. Secondly, he maintained that he had integrated into society in the United Kingdom and had given the Secretary of State evidence of this. He had received training as a forklift truck driver and in carpet fitting. In the 7 years he had lived here he had developed relationships with other people. Accordingly, he was in a position to make a contribution to society in this country. He asked me to have regard to the fact that he had no legal representation and has had no help or assistance in advancing his case.

The Respondent's Submissions

[7] Mr McGregor acknowledged that the court had to examine the petition and the petitioner's submissions with anxious scrutiny. He contended that there was no merit in any of the matters raised either in the petition itself or in the submissions advanced by the petitioner to the court. Mr McGregor first pointed out that in relation to the conditions in the DRC which the petitioner had described and in relation to the photographs of him which apparently are in the possession of the authorities there, no information about either of these matters had been placed before the Secretary of State when she took the decisions complained of. In relation to the lack of legal representation, Mr McGregor pointed out that since at least 10 July 2013 this court has taken active steps to encourage the petitioner to obtain fresh legal representation. The minute of proceedings in respect of July and November 2013 and January 2014 (when this matter last called before the court) all make it clear that his interests were best served in obtaining legal representation. On inquiry from me, the petitioner had explained that he had approached the Ethnic Minority Law Centre in January 2014 who in turn appeared to have given him the address of a solicitor in Barrhead but, by the time that solicitor was given the papers, he did not consider he had sufficient time to take on and prepare this case.

[8] As to the contention that the petitioner was effectively unremoveable from the UK and that he had established private life in this country so that removal would breach his ECHR rights under article 8, these matters were fully addressed by the Secretary of State in the decision letters of 16 January and 12 March 2013. Mr McGregor asked me to repel the plea-in-law for the petitioner, sustain the respondent's second and third pleas-in-law and to dismiss the petition.

[9] By way of background, Mr McGregor pointed out that the petitioner had not previously advanced any suggestion that he would be at risk of persecution on return to the DRC. Nor had he suggested that the authorities there retained photographs of him which put him in personal danger.

[10] Mr McGregor referred me to the decision letter of 23 December 2011 which was the subject of the first petition for judicial review lodged by the petitioner. That decision letter was a response to fresh representations dated 16 December 2011 made on his behalf by Hamilton Burns WS who then acted for him. A claim under rule 353 of the Immigration Rules was made based upon his rights under article 8 of the ECHR. It is clear that the petitioner was contending at that time that he had established a significant private life in the United Kingdom and that matter was developed fully within that letter. His integration into British society is detailed and it was contended that he had significant private life in the United Kingdom, interference with which would breach his rights under article 8(1). Various letters of support were appended to that letter. The Secretary of State dealt fully with all the contentions that had been raised by the petitioner at that time in the context of paragraph 353 of the Immigration Rules. The new material had been considered and rejected. Further, the Secretary of State had proceeded to ask whether an immigration judge might come to a different view.

[11] Since then, the petitioner had raised a new matter to the effect that the Secretary of State ought to take account of the report by Justice First entitled "Unsafe Return". Because of the terms of that report, it was argued that country guidance in relation to DRC ought to be departed from and the Secretary of State had erred in not having proper regard to it.

[12] Although no representations were made to the Secretary of State about that matter until the present petition was amended in order to include this particular challenge, the Secretary of State considered this matter in the decision letter now complained of dated 16 January 2013 at paragraphs 12 and following. Reference was made at paragraph 13 to the country policy bulletin relating to the DRC of November 2012 which examined the contents of the Justice First report and it was concluded at page 21 that the evidence published in the report did not support its assertion that a change in policy on returnees to the DRC was warranted. Reference was made therein to the country guidance case of BK where allegations of mistreatment on return to the DRC were considered by the appeal tribunal in 2007 (see BK v Secretary of State for the Home Department 2007 UKAIT 00098). At paragraph 386 thereof the tribunal stated "We have found no evidence to substantiate the claim that returned failed asylum seekers to the DRC as such face a real risk of persecution or serious harm or ill-treatment".

[13] Mr McGregor pointed out that current country guidance as contained in the case of BK was binding upon an immigration judge at First tier. The Secretary of State had considered that report and the case of BK and had come legitimately to the conclusion that the country guidance should not be departed from on the basis of what was contained in the Justice First report. The country policy bulletin of November 2012 was soundly based upon that country guidance. The Secretary of State could not be faulted for following that guidance.

[14] Mr McGregor also reminded me of the role of the court in claims of the sort made by the petitioner here. He referred me to paragraph 353 of the Immigration Rules and submitted that it is for the Secretary of State first to consider whether or not any further submissions should be allowed or rejected. If rejected, the Secretary of State then requires to determine whether those representations amount to a fresh claim. They will amount to a fresh claim only if they are significantly different from the material previously considered and, when taken together with previously considered material, create a realistic prospect of success before an immigration judge.

[15] Mr McGregor referred me to Dangol v Secretary of State for the Home Department 2011 SC 560 at 565 for the proper approach in this connection. The Inner House there quoted with approval the judgment of Buxton LJ in WM (DRC):

" (11) First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return....The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting point for that inquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusion to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative, it will have to grant an application for review of the Secretary of State's decision".

The Inner House stated that that was a clear and binding statement of the procedure that generally ought to be followed.

[16] Mr McGregor submitted that the Secretary of State had asked herself the correct questions as set out in WM (DRC). Anxious scrutiny had been applied to the matter. The decision in this matter was fortified by a recent decision of the High Court in England in the case of P (DRC) v The Secretary of State for the Home Department 2013 EWHC 3879. Mr Justice Phillips in that case had examined the country guidance cases in relation to the DRC and, in particular, had examined the Justice First report "Unsafe Return" in the context of considering whether people returned to the DRC against their will would be at real risk of ill-treatment contrary to article 3 of the ECHR simply by reason of their status as either failed asylum seekers or as criminal deportees. But Mr Justice Phillips also had particular regard to a further report provided by the Country of Origin Information Service of the UKBA which undertook a fact finding mission (FFM) to Kinshasa in the DFC. His Lordship points out at paragraph 34 that the Justice First report required to be viewed in the light of the subsequent FFM report and makes a comparative criticism of the two reports. He notes that the FFM was conducted by country researchers within the Country of Origin Information Service supported by the British Embassy in Kinshasa and was undertaken with reference to the EU guidelines on fact finding missions. By contrast, the Justice First report was compiled by a single author whose expertise or qualifications were unclear. Having examined the detail of the FFM report, Mr Justice Phillips considered that the conclusion that there was no risk to failed asylum seekers as such was justified and "certainly not irrational". He found that the UKBA was entitled to give significant weight to the extensive experience of returns to the DRC reported by the United Nations and the eleven states participating in the inter-governmental consultation on migration, asylum and refugees. He finds that the UKBA's decision to continue to act in accordance with the country guidance in BK was difficult to fault. He went on at paragraph 41 to state:

"Even applying the most anxious scrutiny, the evidence available does not justify the defendant or this court departing from the existing country guidance".

[17] Accordingly, Mr McGregor submitted that the Secretary of State's conclusion at paragraph 13 of the decision letter of 16 January 2013 that the petitioner's claim that it is unsafe to return him to the DRC does not create a realistic prospect of success was unchallengeable. In particular, the new material advanced by the petitioner in the petition, based upon the findings of the Justice First report, had been properly considered by the Secretary of State and rejected by her for sound reasons which had now been fortified by the decision of Mr Justice Phillips in P (DRC). Further, the Secretary of State's conclusion that there was no reasonable prospect of an immigration judge coming to a contrary conclusion could not be said to be in any way erroneous.

[18] The second main challenge related to the contention that, because the petitioner did not have the necessary identity documents, he was "effectively unreturnable" to the DRC. Mr McGregor referred me to paragraphs 9 to 11 of the decision letter of 16 January 2013 where this matter is specifically dealt with. It is pointed out there that it would be possible for the petitioner to obtain assistance in obtaining the necessary documents and thereafter to return safely to the DRC. Reference is again made to the DRC policy bulletin issued in November 2012 which sets out at paragraph 12.4 the procedure which exists for the obtaining of emergency identity documents with the assistance of DRC officials who travelled to the UK specifically for this purpose. Even if the petitioner was not prepared to seek assistance of the sort described in obtaining documentation and returning to the DRC voluntarily, it is said at paragraph 11 that it is possible for the UKBA to obtain the necessary documentation to enforce removal. For these reasons his claim to be unremovable was rejected.

[19] In addition, the respondent had lodged an affidavit from Myles Matthews dated 29 January 2014 in these proceedings. He is a senior executive officer employed by the respondent. He confirms that the authorities in the DRC will only allow entry to individuals that possess a valid passport or an emergency travel document issued by the Director General of Migration (DGM) in Kinshasa. He describes the process for obtaining emergency travel documents so that failed asylum seekers who do not possess a passport can be removed from the United Kingdom to the DRC. A seconded official from the DGM arrived in the United Kingdom in April 2013 to conduct interviews for the purpose of removing such people to the DRC. Following interviews, that official reports his findings to the DGM in Kinshasa who then issue the appropriate documents. As at the date of the affidavit, the documentation process had resulted in 21 travel documents being issued to individuals from the DRC. If this petition is dismissed, the respondent would intend to obtain emergency travel documentation for the petitioner.

[20] Accordingly, the rejection of the claim that the petitioner was unremovable from the United Kingdom was a proper one and there would be no realistic prospect of an immigration judge coming to a different conclusion.

[21] In any event, Mr McGregor pointed out that if he is actually correct in saying that he is unremovable, then there could be no interference with any private life that he may have established contrary to article 8 of the ECHR.

[22] The petitioner also claimed that he had established private life under the ECHR and the Secretary of State erred in failing to consider his case outwith the immigration rules. The Secretary of State dealt with this matter in the decision letter of 16 January in paragraphs 15 to 19. There it was pointed out that the petitioner did not claim any family life within the United Kingdom since his wife, five children, his mother, a brother and three sisters were all living in the DRC. He only had one brother within the UK. There was no evidence to show that emotional ties, beyond those normally encountered, exists between the petitioner and his brother. It was not considered that his removal would result in any disproportionate interference with his private life in terms of the immigration rules. His private life was, in any event precarious, due to his immigration history. He had no legal basis to be in the UK. It could not be contended that he would succeed under paragraph 276 ADE (1)(ii) since he was unable to show that he had lived continuously in the UK for at least 20 years.

[23] At paragraph 19 the Secretary of State stated that there were no exceptional circumstances which might establish that the petitioner's removal would breach article 8 of the ECHR. Mr McGregor accepted that a test of exceptional circumstances was not the correct one and that, in terms of MS v Secretary of State for the Home Department 2013 CSIH 52, if it were necessary to consider an article 8 claim outwith the rules, there would have to be a "good arguable case" that leave should be granted outwith those rules. In the decision letter of 12 March 2013 this matter had been addressed at paragraphs 8 and following. There, the Secretary of State had conducted a separate, additional assessment of the petitioner's article 8 claim outwith the immigration rules. Reference is made to the letters of representation on behalf of the petitioner in which he was said to have developed a private life in the form of friendships, to having performed voluntary work with organisations such as Next Step Initiative and Bridges Programmes Limited. It was concluded, however, that his removal would not amount to a disproportionate interference with his article 8 rights. It was acknowledged that he had been in the UK for over 6 years, had developed friendships and had submitted letters of support. It was also accepted that he had been involved in voluntary activities. It was therefore accepted that he had made some effort to integrate into life in the UK. However, the Secretary of State concluded that the need to maintain an effective system of immigration control was a weighty consideration and, having regard to the limited extent of the private life claimed in this case, the public interest outweighed any interference with his article 8 rights. The Secretary of State had also separately considered that there would be no realistic prospect of an immigration judge coming to a different conclusion. Mr McGregor submitted that the Secretary of State had taken all relevant considerations into account and her judgment was not in any way erroneous in law or irrational.

[24] So far as the contention that the Secretary of State had failed to take account of the delay in taking removal action against the petitioner, Mr McGregor submitted that there had been no undue delay here, having regard to the history of the further representations and the two petitions for judicial review which the petitioner had presented over the period during which he had been in the UK. The Secretary of State had considered this matter fully and properly in the decision letter of 12 March 2013.

Discussion and Decision.

[25] I will dealt with what I understand to be the petitioner's complaints both as set out in the petition and in his submissions before me. I bear in mind that he was unrepresented, despite the previous efforts of the court to underline the importance of obtaining new legal advisors. The challenges he advances in his petition are to some extent difficult to follow as Mr McGregor pointed out. Nevertheless, I attempt to summarise them in the following discussion.

Delay

[26] The petitioner appealed through the Tribunal system against the dismissal of his asylum claim until he was refused leave to appeal to the Court of Session in June 2009. Thereafter, he has submitted three sets of fresh representations all of which have been rejected and two petitions for judicial review, the first of which he abandoned. The Secretary of State dealt promptly with the further representations submitted to her and had also considered further challenges to the petitioner's removal contained in the current petition as if they were fresh representations. Since his appeal rights ended in September 2009, the petitioner claims that the Secretary of State has delayed in seeking to remove him and has "tacitly permitted" him to remain to a period of over 3 years and has allowed him thereby to establish a private life in the UK to the extent that to remove him would now be disproportionate. The Secretary of State dealt with this matter in the letter of 12 March 2013. It is pointed out there (and in Answer 28 and 29 to the petition) that the petitioner himself has prevented the Secretary of State from acting by his failure to abide by reporting conditions and by presenting the petitions for judicial review. In the letter of 16 January 2013 it is said that he repeatedly failed to report in February 2010, failed to provide a current address in July and August 2010, failed to report in December 2011 and November 2012 and in Answer 28 it is averred that he has failed to comply with his reporting restrictions since 23 November 2012. The petitioner admits that he has a "tendency to abscond for periods" in statement 28 and 45 of his petition. At paragraph 22 and 23 of the letter of 12 March 2013, it is pointed out that since he was refused leave to appeal to the Inner House of the Court of Session he has for periods failed to comply with the conditions of his temporary release and had absconded. In addition, he presented a petition for judicial review in June 2011 which he abandoned in October 2011. This was followed by fresh representations in December 2011. There appears to be a period between October 2011 and the presentation of the first petition for judicial review on 3 June 2011 and another between December 2011 and November 2012 (when he again failed to report) when no action appears to have been taken. Apart from those periods, however, there appears to be no significant period when action could have been but was not taken. Furthermore, it is said in the March 2013 letter that he has been "consistently served with notices requiring him to report to the UKBA" and he has repeatedly been offered the option of applying for Assisted Voluntary Return. In addition, it is plain from the Supreme Court's judgment in ST (Eritrea) v SSHD 2012 UKSC 12 that persons temporarily admitted rather than detained remain here without entitlement (as was pointed out in the March 2013 letter). Standing the above, I consider that the Secretary of State was well founded in concluding that there has been no undue delay in processing the petitioner's case. Nor do I consider that during the years he has spent in the UK he could have been under any impression that the Secretary of State was "tacitly permitting" him to remain. He deliberately and repeatedly failed to comply with conditions of his temporary admission and must have been aware that his residence was precarious because of his liability to detention and removal. He submitted fresh representations by which he hoped to prolong his residence. In those circumstances, the Secretary of State's decision that the enforced removal of the petitioner would not amount to disproportionate interference with the limited private life he was able to demonstrate, cannot be said to be unreasonable, irrational or otherwise wrong in law. Similarly, the finding that there was no realistic prospect of an immigration judge coming to a different conclusion is unassailable.

Persecution in DRC

[27] The petitioner now claims that he would be subjected to persecution at the hands of the regime in DRC were he to be returned there. Photographs of him in the possession of the authorities would mean that he would be in danger. As was pointed out, these particular considerations have never been advanced in the protracted history of the petitioner's challenges and it is difficult to understand why they come to be raised for the first time at this hearing. The respondent has not had an opportunity to consider these matters and it would not be appropriate for me to decide upon them in the context of this petition. It is, of course, open to the petitioner to raise them with the Secretary of State in yet further representations, if he sees fit. In his appeal to the FTT determined on 30 April 2007, the petitioner contended that he was ill-treated while in detention by the authorities in the DRC prior to his departure but his evidence was not accepted by the immigration judge who concluded at paragraph 56 that he did not believe that the authorities in the DRC were looking for the appellant, that he was not political and had no political affiliations and that his account lacked credibility. The judge did not accept that the petitioner was of any interest to the authorities and did not believe he would have any problems on return. That determination was reconsidered by a Senior Immigration judge after a further hearing and upheld on 2 November 2007.

The Justice First Report

[28] The Secretary of State has dealt with the question of the risk to failed asylum seekers generally in terms of the country guidance in response to the existing representations and the averments in the petition and I will deal with those matters. It is plain from what I set out above that the Secretary of State has considered the contents of the Justice First Report and has done so in the light of the report of the FFM. That was done despite the fact that the petitioner's case was based on article 8 of EHCR and not on article 3 thereof. Given the terms of the DRC Policy Bulletin and in particular to the terms of the FFM referred to above, it cannot be said that the decision to refuse to accept the representations based upon that report as a fresh claim is unreasonable or irrational. It is accepted at paragraph 13 of the decision letter of 16 January 2013 that country guidance is not inflexible. However, the terms of the FFM report provided a sound basis for rejecting the contention that failed asylum seekers would face a real risk of serious harm and the Secretary of State was entitled so to conclude. That conclusion is supported by Mr Justice Phillips' recent judgement in P (DRC) cited above. It cannot be said that there is a realistic prospect of an Immigration Judge would coming to a different view.

The petitioner is "effectively unremovable" to the DRC

[29] The next matter relates to the contention that the Secretary of State failed to have regard to the fact that the petitioner is effectively unremoveable to the DRC because he does not possess the required documentation to permit his return to DRC. This, together with the claim that he has established private life in the UK, is said to constitute a case with realistic prospects of success.

[30] Again the Secretary of State has addressed this matter in the recent decision letters despite the fact that it was only raised in the context of this petition. Further information is submitted in the form of the affidavit from Mr Mathews. The Secretary of State sets out in paragraphs 9-11 of the letter of 16 January 2013 the procedure which is available to persons without travel documents which enables them to obtain the necessary documents. That this procedure is in place and effective is supported by Mr Mathews' affidavit. In the event of a person being unwilling to participate in this procedure, the UKBA can obtain the documentation in order to enforce removal. In those circumstances, the Secretary of State's position on this matter is neither unreasonable or irrational. Experience confirms, according to Mr Mathews, that the procedure succeeds in obtaining the necessary documents to allow the return of failed asylum seekers. He states specifically that, in the event that this petition is dismissed, the respondent intends to obtain an emergency travel document and proceed with the removal of the petitioner. I consider that the Secretary of State was well entitled to say that there is no realistic prospect of an immigration judge arriving at a different conclusion.

The proportionality test

[31] Further it is claimed at paragraph 37 of the petition, that the real issue is whether the decision to remove the petitioner was proportionate. It is said in paragraph 46 that the Secretary of State failed to make such an assessment and has proceeded only in terms of the Immigration Rules. Reference is made to the opinion of Lord Brodie in MS (Petitioner) 2013 CSOH 1. There is no reference to the decision of the Inner House in that case. There, the court decided that a petitioner required to demonstrate a good arguable case that his application should be considered outwith the immigration rules. In any event, the Secretary of State did make an assessment of the proportionality of the decision to remove the petitioner outwith the rules in the decision letter of 12 March 2013. The points supporting the establishment of private life in the UK are considered in paragraph 14 and 15. These are weighed against the public interest of maintaining an effective system of immigration control at paragraphs 17 to 22. It cannot therefore now be said that the Secretary of State has failed to perform this exercise. I consider that all relevant considerations both for and against the petitioner have been taken into account and a decision reached upon them which is neither unreasonable or irrational. The conclusion that there is no prospect of an immigration judge coming to a different view had also been arrived at on proper grounds. In this connection, it is notable that the immigration judge in his determination of 4 May 2007 made a number of adverse comments on the credibility and reliability of the petitioner. These are set out in the decision letter of 16 January 2013 paragraph 8. These findings were upheld when reconsidered. That history was relevant to the Secretary of State's consideration as to whether there was a realistic prospect of success before an immigration judge.

The lack of legal representation

[32] The petitioner was represented at an earlier stage of these proceedings and the petition was drafted and adjusted by counsel. I have attempted to consider all the points raised therein with the assistance of Mr McGregor's helpful submissions. This court has been at pains to encourage the petitioner to obtain new representations since July 2013. While he explained that he has approached at Law Centre in January of this year, no explanation of why he had not done so sooner was advanced. The petitioner has been attempting to overturn the decision to remove him since 2007 and it is not in the public interest to prolong these proceedings for judicial review. The petitioner made no request that I should grant any further adjournment of this hearing and, in any event, I do not consider that any such motion would be justified. Mr McGregor on behalf of the Secretary of State dealt fully and fairly with the issues raised by the petitioner and within the present petition itself and I have attempted to give them careful consideration.

[33] In all the circumstances, I have reached the view that the challenges to the decision letters advanced in the petition and by the petitioner himself before me, insofar as it is appropriate for me to deal with them, are unfounded. I will therefore dismiss the petition. I canvassed with the petitioner the question of expenses and understood him to accept that expenses should follow success. I will therefore make an award of the expenses of this petition against the petitioner.