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OUTER HOUSE, COURT OF SESSION
[2018] CSOH 123
P309/15
OPINION BY LORD WOOLMAN
In the petition
MN
against
THE ADVOCATE GENERAL FOR SCOTLAND
Petitioner
Respondent
Petitioner: Bovey QC; MHD Law LLP
Respondent: Webster QC; Office of the Advocate General
7 December 2018
[1] MN is a national of Pakistan. He has lived in the United Kingdom since 2007, when
he entered on a student visa. He met and married an Irish citizen (“SS”) in April 2011. At
that stage his immigration status changed. As the spouse of an EC national exercising treaty
rights in the UK, MN became entitled to a European Economic Area (“EEA”) residence card.
[2] The couple lived together in the UK for about a year after their wedding. She
became pregnant and went to her mother’s home in Ireland. SS gave birth to their son
(“LN”) on 4 July 2012. The marriage foundered shortly afterwards. After spending about a
week in the UK with MN that autumn, SS took LN to live in Ireland on 2 October 2012. She
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did so without MN’s consent. They have not lived together since then. There is a degree of
animosity between them.
[3] MN raised proceedings under the Hague Convention to bring LN back to the
jurisdiction of the UK courts. SS also raised proceedings to regulate their legal relationship.
Both matters came before the Circuit Family Court at Carrick on Shannon in Ireland. A
judge of that court granted various orders in May and June 2013. They included a decree of
judicial separation. The judge also gave effect to a settlement document. It (a) awarded MN
and SS joint custody of their son, (b) gave primary care and control to SS, and (c) granted
MN access to LN each month in Ireland, subject to him surrendering his passport before
each visit to prevent any flight risk.
[4] For the next six months, MN exercised his right of contact in accordance with the
court order. The visits with his son lasted either one or two days. I should add that MN is a
man of good character who has never received welfare benefits in the UK. He has worked
in a library and as a sales adviser. He has not come to the notice of the police. He pays child
support in respect of his son.
[5] In February 2013, the Secretary of State for the Home Department (“SSHD”) revoked
the EEA residence card on learning that MN was no longer eligible after SS had returned to
Ireland. The SSHD did not have MN’s current address and therefore did not notify him at
the time. He was listed, however, as “a person of interest” who should be detained at any
point of entry to the UK.
[6] On 21 November 2013, MN returned to Edinburgh airport after a contact visit in
Ireland. Border officials seized his residence card and passport with a view to requiring him
to return to Pakistan. The SSHD then granted MN temporary admission with permission to
work. That was done to give him an opportunity to obtain leave to reside in Ireland.
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[7] Subsequently, there have been three broad streams of events. First, MN applied to
the Irish immigration authorities to receive a visa allowing him to stay permanently in
Ireland. Secondly, he sought discretionary leave to remain in the UK while that application
was finally determined. Thirdly, he has had limited and sporadic contact with LN. I shall
deal with each of these matters in turn.
[8] MN founded his application to live in Ireland on ECHR Article 8. He emphasised
both his own and his son’s right to family life. On 30 August 2017 the Irish authorities
issued a letter refusing the application. The letter contained detailed reasons. MN says that
he did not appeal that decision because of advice from the Irish Embassy. They told him
that he could not both appeal and apply for a fresh visit visa, as they would not entertain
two applications which were live at the same time.
[9] On 27 January 2018, MN applied for a further single-entry visa to Ireland. On
14 May, the Irish Embassy refused his application. On 6 July 2018, MN began judicial
review proceedings challenging the decision in the Irish High Court. His Dublin solicitors
have recently received a letter stating that the case is on the settlement list. It is not known
whether the matter will be resolved and, if so, on what terms.
[10] From November 2013 onwards, the SSHD has granted MN permission to remain in
the UK while the Irish authorities processed his application. The last two periods were each
of six months duration. His permission was due to expire in March 2018. About a week
before, MN sought a further extension on human rights grounds.
[11] By letter dated 3 July 2018, the SSHD refused the claim and instructed MN to leave
the UK. The Home Office also certified the application as “clearly unfounded” under
section 94 (1) of the Nationality, Immigration and Asylum Act 2002.
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[12] MN wishes to remain in the UK to see whether the judicial review proceedings in
Ireland result in a favourable outcome. His ultimate aim is to have equal involvement in the
upbringing of their son.
[13] MN has been able to exercise his contact rights by means of specific arrangements
approved by the UK and Irish authorities. These have covered single visits and multiple
visits over longer (but limited) periods. MN last visited his son in Ireland a considerable
time ago. Currently they have no physical contact. The Irish authorities will only admit MN
to their country if (a) he possesses a valid passport, and (b) the UK authorities confirm that
they will admit him back to this country after any such visit.
[14] Mr Bovey contends that there is a fundamental flaw in the decision of 3 July 2018. It
is this. The SSHD failed to recognise that MN and LN are entitled to have physical contact.
Mr Bovey maintains that it is disingenuous to suggest that MN would be in the same
position in Pakistan. The financial implications would, for example, make monthly contact
visits impossible. Mr Bovey points to the positive obligation upon States to seek to reunite
families and to facilitate contact between parents and children: Schneider v Germany (2012)
[15] Mr Bovey makes specific complaints about the decision letter. He contends that it
failed to address a number of material matters, or to provide sufficient reasons. In particular
it (1) failed to recognise MN’s Article 8 ECHR rights; (2) airbrushed his son’s Article 8 rights
to such an extent that he became invisible in the decision-making process; (3) failed to
acknowledge that the Irish authorities would permit MN to visit Ireland if he satisfies the
two conditions; and (4) failed to carry out a proper balancing exercise evaluating the
detriment caused by the decision to MN and LN against general immigration control.
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[16] On behalf of the SSHD, Mr Webster submitted that the decision letter was entirely
adequate, because the issue was a short and sharp one. MN had been permitted to stay in
this country to enable him to apply for residence in Ireland. He had taken that opportunity,
his claim had failed, and he had not marked an appeal. The application for judicial review
in Ireland should be ignored as it was brought after 3 July 2018.
[17] The decision letter has a familiar architecture. It begins by outlining MN’s
immigration history. It then states that he does not have a family life with LN in the UK. It
therefore focuses on the private life aspect of his claim. It states:
“We have considered, under paragraph GEN = 3.2 of Appendix FM, whether
there are exceptional circumstances in your case which would render refusal
and breach of article 8 of the ECHR because it would result in unjustifiably
harsh consequences for you, a relevant child or other family member. In so
doing we have taken into account, under paragraph GEN 3.3 of Appendix FM,
the best interests of any relevant child as a primary consideration.”
[18] The letter states that the SSHD has decided that there are no exceptional
circumstances and continues:
“You have told us that you require further time in the UK so that you can
obtain an Irish visa to visit your son who resides in the Republic of Ireland.
You were initially granted six months [leave to remain] in order to await the
outcome of your Irish application, however it is noted that this was refused on
30 August 2017 and you did not appeal against this decision, a further grant of
leave outside the rules is therefore not appropriate.”
[19] The decision letter concludes on the merits by stating that it is proportionate to
require MN to seek entry clearance to Ireland from Pakistan.
[20] The central question is in short compass: is the decision unreasonable? In answering
that question, I have regard to the whole circumstances.
[21] The SSHD required to have regard to all the factors set out in Appendix FM of the
Immigration Rules: R (Agyarko) v Home Secretary [2017] 1 WLR 823, per Lord Reed at
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paragraphs 5 to 13. As they are not a complete code, the SSHD also had to take into account
any other factor that might bear upon Article 8.
[22] What was known to the SSHD as at 3 July 2018? First, since at least November 2013
MN had been an overstayer. He was a third-country national with no right to remain in the
UK. Secondly, he wished to stay here to pursue entry clearance in Ireland so that he could
be closer to his son and exercise his contact rights there. Thirdly, he had been granted
permission for that purpose, which had endured for a significant period. Fourthly, his
Article 8 claim in Ireland had failed. Fifthly, he chose not to appeal that decision. Sixthly,
the question of having contact visits with his son depended entirely on the Irish authorities.
The matter was one for them to determine.
[23] These factors are all properly reflected in the decision letter. I conclude that they
provided a sure foundation for the SSHD’s decision. I conclude that it was a reasonable one,
that it addressed the relevant issues, and that it articulated its reasons in an appropriate
form.
[24] The decision cannot be characterised as disproportionate. There had to be a terminus
to MN’s attempts to secure a favourable result from the Irish authorities. The SSHD is under
a duty to maintain immigration controls. In making individual decisions, it must therefore
carry out a balancing exercise. It recognised that MN could participate, if necessary, by
video link in an out-of-country appeal. Such hearings are not incompatible with ECHR
Article 8 rights: R (QR (Pakistan) v Secretary of State for the Home Department [2018] EWCA
Civ 1413, per Hickinbottom LJ at paragraph 11.
[25] For these reasons, I refuse to pronounce any of the orders sought in the petition.
Technically, that means that I shall sustain pleas-in-law 1, 2 and 5 for the SSHD and repel
the petitioner’s pleas-in-law.
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[26] On the unopposed motion of the respondent, I grant expenses in his favour, but
modified to nil on the basis of the petitioner’s legal aid certificate.
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