Petition Of Aa For Judicial Review Of Decisions Of The Secretary Of State For The Home Department

JurisdictionScotland
JudgeLord Doherty
Neutral Citation[2012] CSOH 76
Year2012
Published date03 May 2012
Date03 May 2012
CourtCourt of Session
Docket NumberP592/11

OUTER HOUSE, COURT OF SESSION

[2012] CSOH 76

P592/11

OPINION OF LORD DOHERTY

in the Petition

AA

Petitioner;

for

Judicial Review of decisions of the Secretary of State for the Home Department dated 27 May 2011 and 25 October 2011

Respondent:

________________

Petitioner: Winter; Drummond Miller LLP

Respondent: MacGregor; Office of the Advocate General

3 May 2012

Introduction
[1] The Petitioner is a national of Pakistan.
He claims to have entered the United Kingdom illegally in 1996. On 3 October 2000 he claimed asylum. He failed to attend his asylum interview. On 4 December 2000 his asylum claim was refused. On 20 April 2001 he was served with notice that he was a person liable to removal from the United Kingdom. He failed to maintain contact with the Home Office and on 6 July 2002 he was recorded as being an absconder from immigration control. On 20 November 2006 he was encountered during an enforcement operation. He had been working as a chef. He presented faded appeal papers dated 26 April 2001. There was no record of these ever having been submitted. He was served with new appeal forms. These were completed but sent to the wrong address. Eventually, on 22 May 2007 the appeal was lodged with the Asylum and Immigration Tribunal. On 31 May 2007 the Asylum and Immigration Tribunal directed that it did not accept the Petitioner's notice of appeal. The Petitioner submitted further representations on 14 February 2008. On 13 July 2010 the Respondent rejected the further submissions and determined that they did not amount to a fresh claim. The Petitioner brought judicial review proceedings challenging that decision. He did not insist on them and, on his motion, the Petition in those proceedings was dismissed on 10 May 2011.

[2] The Petitioner made further submissions dated 26 October 2010 and 23, 24 and 27 May 2011. The representations of 26 October 2010 comprised a very short covering letter from the Petitioner's agents enclosing some material "in support of an application for leave to remain in the United Kingdom based on legacy". The letter simply invited the Respondent "to consider all matters afresh" in light of the material enclosed. The new material was made up of two copy letters from accountants indicating that the Petitioner had worked on a casual basis for clients of theirs for a few months in 1996; a letter from a GP relating to the Petitioner's health; (skeletal) letters from individuals indicating they had known/had ties with the Petitioner since 1996; and SQA certificates, correspondence and other items relating to the Petitioner's involvement with Langside College from 2001. In that material the Petitioner's address was given as A or B in items pre-dating 30 July 2010 and as C on items dated on that date or later. The representations of 23 May 2011 constituted a statement of the Petitioner and a very brief covering letter. The statement set out the circumstances in which the Petitioner had left Pakistan. It indicated that he contacted his brother, M, after his arrival in the UK in mid-1996 but "did not get great help" from him at that time; that he became a good chef; that following his being encountered by Home Office officials his health has deteriorated; that his brother lived with his wife at address C; that the Petitioner was "currently residing with my brother who is looking after my basic needs. " The covering letter indicated that the statement "contains significant information which was not previously before the Secretary of State". There was no indication as to which parts of the information in the statement were significant and no explanation of why they were significant. The Petitioner's agents' letter of 27 May 2011 was in the following terms:

"... We would wish to make it clear that our representations of 26 October 2010 and 23 May 2011 are to be considered in terms of Rule 353 of the Immigration Rules. We note from your decision of 13 July 2010 that you felt there was insufficient information to prove our client's residence in the United Kingdom from 1996, and that there was an insufficient amount of compelling information to allow a decision to be made in our client's favour.

We would submit that the information you now have is sufficient and compelling ...

You will note that Mr A has now been in the United Kingdom for a period in excess of 14 years, and that your own rules make specific reference to long residency in similar circumstances.

We would submit that on any view, Mr A is very close to meeting the test and only the most detailed of scrutiny will be sufficient in this matter. We would also make the point that Mr A has never been in a position to put his Article 8 claim before an Immigration Judge and would submit that this is reasonable in the circumstances ..."

[3] On 27 May 2011 the Petitioner brought the present judicial review proceedings. On the same date the Respondent rejected the further submissions and determined that they did not amount to a fresh claim.

[4] On 25 October 2011 the Respondent wrote to the Petitioner's solicitors. The letter began:

"I refer to your letter of 24 May 2011 in which you have asked for your representations on behalf of your above named client to be considered as a fresh application for asylum and/or Human Rights and to our reply of 27 May 2011.

Further consideration has been given to the issues raised in that letter and the enclosures and this decision should be read together with our earlier responses of 13 July 2010 and 27 May 2011 ....

Your representations have been given further consideration with particular reference to Article 8 of the ECHR in view of Mr A's claimed long residence in the UK and the strength of his claimed family ties and private life here. "

The Respondent went on to give consideration to those representations and the previously submitted material. She determined that they did not amount to a fresh claim.

[5] On 2 November 2011 the court granted the Petitioner's motion to discharge the First Hearing set down for that day. Thereafter the Petitioner prepared four separate Minutes of Amendment. He was permitted to amend the Petition in terms thereof. Among the matters addressed he sought reduction of the decision of 25 October 2011, and the crave for reduction of the decision letter of 13 July 2010 was deleted. Statement 3 of the Petition as amended reads:

"3. That the Petitioner seeks:-

i. Reduction of the decision to refuse the Petitioner's fresh claim, dated 27 May 2011 and reduction of the Secretary of State's decision letter dated 25 October 2011; .... "

[6] The Petition came before me for a First Hearing.

Was the letter of 25 October 2011 a decision letter?
[7] Mr Winter's primary submission in relation to the letter of 25 October 2011 was that I should have no regard to it.
It was, he contended, an illegitimate ex post facto rationalisation of the decision of 27 May 2011. Accordingly, I should ignore it (Absolom v Governor of H.M. Prison, Kilmarnock [2010] CSOH 109; Chief Constable of Lothian and Borders Police v Lothian and Borders Police Board 2005 SLT 315; R v Westminster City Council, ex p. Ermakov [1996] 2 All ER 302; R (P Richards & G Richards) v Pembrokeshire County Council [2004] EWCA Civ 1000).

[8] This submission sits uneasily with the Petition, which seeks judicial review of the letters dated 27 May and 25 October 2011, including "reduction of the Secretary of State's decision letter dated 25 October 2011" (paragraph 3 i.). The Petitioner admits (paragraph 2) that the Respondent gave further consideration to the Petitioner's further representations and issued another decision letter on 25 October 2011; and that all three decision letters require to be read together. In paragraph 6 he avers "On the 25 October 2011 the Respondent issued a new decision letter." It seems clear that all the Petitioner's averments, and his second plea-in-law, proceed on this basis. The only hint of a different position comes in an averment at the end of paragraph 12 (introduced very late in the day by the Petitioner's fourth Minute of Amendment):

"That the letter of 25 October 2011 should not be taken into account as it is inconsistent with the letter of 25 May 2011 (sic) as referred to above and as hereinafter condescended upon (see Absolom v Governor of HM Prison, Kilmarnock [2010] CSOH 109)".

[9] If this point was to be taken it could, and in my view ought, to have been dealt with at the First Hearing set down for 2 November 2011. The fact is that at that time both parties were proceeding on the basis that the letter of 25 October 2011 was a further decision letter. That was why discharge of the First Hearing and amendment of the pleadings was considered to be necessary.

[10] In any case, in my opinion the argument is not well founded.

[11] I do not accept Mr Winter's contention that the letter of 25 October 2011 is inconsistent in material respects with the previous decision letters (cf. Absolom v HM Governor of HM Prison, Kilmarnock; R v Westminster City Council, ex p. Ermakov; R (P Richards & G Richards) v Pembrokeshire County Council). In relation to two of the matters he relied upon (the Respondent's approach to the copy letters from the accountants and her response to the 14 years residence argument) I am wholly unpersuaded that the final decision letter was irreconcilable with the previous decision letters. In relation to the final claimed material inconsistency (concerning the treatment of the family life claim) there is an additional reason for rejecting Mr Winter's argument. In my opinion it was far from clear from the brief mention of M in the Petitioner's statement that the Petitioner was claiming to have a family life with him. The representations did not clearly focus and articulate any such claim. Clarification did not come until the present Petition for judicial review. Once it became apparent from the Petition exactly what the Petitioner's position was,...

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