A.k. V. The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Clarke,Lord Carloway,Lord Emslie |
| Judgment Date | 16 December 2010 |
| Neutral Citation | [2010] CSIH 98 |
| Court | Court of Session |
| Date | 16 December 2010 |
| Published date | 16 December 2010 |
| Docket Number | P148/09 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Carloway Lord Clarke Lord Emslie | [2010] CSIH 98 P148/09 OPINION OF LORD CARLOWAY in the reclaiming motion of AK, Petitioner and Reclaimer; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: _______ |
Alt: K Campbell; C. Mullin, Solicitor to the Advocate General
16 December 2010
[1] This Opinion requires to be read in conjunction with that issued in HS v The Secretary of State for the Home Department, the reclaiming motion in which was heard at the same time as that in this petition.
1. The Application for Leave to Remain
[2] The petitioner is an Israeli citizen of Russian origin who arrived in the United Kingdom, with his wife and two daughters, on 18 August 2005. His daughters, namely E and A, were born respectively in 2001 and 2004. The petitioner had a six month visitor visa. He claimed asylum, but this was refused on 6 October 2005 and his appeal rights became exhausted on 20 January 2006. As part of that process, there had been a determination by an Immigration Judge dated 12 December 2005 upon the petitioner's claim for not only asylum but also that his removal would be contrary to his rights under Articles 2, 3, 6 and 8 of the European Convention on Human Rights. This determination considered the position regarding his older child as follows:
"22. The Appellant makes reference to his eldest daughter having problems in the kindergarten where other children would often beat her and throw stones. There is no evidence to show that the Appellant and or his wife took this mater (sic) up with the kindergarten authorities. The Appellant described an incident where after two months in the kindergarten the child's teacher beat her up. I am not given any information as to why a teacher would do such a thing or what the circumstances were. The Appellant took his daughter out of kindergarten and spoke to the person responsible for kindergartens. There is no evidence to show that the Appellant tried to bring charges against this teacher for her actions. According to the US Report the Israeli Government has legislated against abuse of children and has mandated comprehensive reporting requirements. There is no evidence to show that the Appellant and or his wife did anything to bring this teacher's actions to account. The Appellant states that if he did not send his child to state kindergarten from the age of four he and his wife would lose their parental rights. There is no objective evidence to support this contention other than the US Report stating that education is compulsory until the child reaches the 10th grade.
...
27. Article 8 has not been breached. The Appellant can return with every member of his family to Israel and continue his private life there. There is nothing in this case that is singularly exceptional to come to a different view. It is proportionate for them to return".
[3] On 13 March 2007 the petitioner's wife give birth to their third child. On 14 June 2007 the petitioner presented what purported to be a fresh application for asylum and ECHR protection. This repeated allegations that the petitioner's daughter E had experienced discrimination within the Israeli educational system. It stated that this daughter was attending primary school in Glasgow and was settled there. It said that "...she would not have this if she is returned to Israel". The application founded upon what was said to be article 20(5) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 which, it was maintained:
"clearly makes it incumbent upon the United Kingdom in (sic) the best interests of the child shall be a primary consideration for the United Kingdom and furthermore Article 23 where the United Kingdom shall ensure that the family unit can be maintained. As you are aware the applicant's child is progressing well at school".
It should be noticed that these Regulations (SI 2006 No 2525) do not seem to contain any such provisions. However, the letter continued with a plea that the petitioner relied on ECHR Articles 3 and 8 and maintained that removal of the family would breach Article 8 as disproportionate.
[4] By letter dated 28 December 2007, the petitioner applied for consideration under the respondent's "legacy programme", and repeated the claim under Article 8 on the basis that the petitioner and her (sic) children were entitled to have their case "considered/reconsidered" in light of a particular policy. The letter stated:
"...[the respondent] in interpreting Article 8 of the Convention must approach our client's situation as a straightforward balancing exercise and equally, he must give consideration to the individual circumstances of the case. The decision... must pass the test of proportionality
There is a UK born child...and the family have settled into life in Scotland progressing well in education and studies".
[5] The application was, in large measure, duplicated in a letter dated 4 June 2008. The respondent rejected these applications because neither amounted to a "fresh claim". The petitioner raised a petition for judicial review, but this was dismissed on the understanding that the respondent would consider further representations. These were presented in the form of a new application dated 21 November 2008. By this time a "Lead Professional Report" had been obtained. This, along with other documents, was said to:
"...show that the clients have integrated substantially into the community in which they live. The two youngest children are at nursery and the oldest child is now at school. The academic records seem to indicate that the children are doing particularly well...
The family's domestic circumstances show that they are in settled housing, that there (sic) children are in education and that they have made friends in the UK".
[6] The Lead Professional Report did confirm that E attended modern dance classes. She was described by her teacher as a "good pupil who does not miss a session, a good dancer who always tries hard". She had good grades in her subjects.
[7] By letter dated 16 January 2009, the new application, which was dealt with in conjunction with the earlier applications, was rejected by the respondent. The letter concluded that there was no evidence of Article 3 mistreatment by reason of discrimination against children in education. It continued:
"Next consideration has been given to whether there would be a realistic prospect of an Immigration Judge concluding that the removal of your client and his family would breach their Article 8 rights. It is considered, for the following reasons, that there would not...
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