Stephen Nasho Alibinu For Judicial Review Of A Decision Refusing The Petitioner Further Leave To Remain
| Jurisdiction | Scotland |
| Judge | Lady Stacey |
| Neutral Citation | [2015] CSOH 155 |
| Year | 2015 |
| Published date | 13 November 2015 |
| Date | 13 November 2015 |
| Court | Court of Session |
| Docket Number | P89/15 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 155
P89/15
OPINION OF LADY STACEY
In the cause
STEPHEN NASHO ALIBINU
Petitioner;
for
Judicial Review of a decision refusing the petitioner further leave to remain
Petitioner: Lindsay QC, Winter; Drummond Miller LLP
Respondent: Pirie; Office of the Advocate General
13 November 2015
[1] The petitioner is a national of Zimbabwe. He seeks judicial review of a decision of the respondent dated 27 March 2015 refusing to consider an application made by him as a fresh human rights claim.
[2] The petitioner has been in the UK since 2001, having entered on a visitor’s visa. His date of birth is 20 November 1968. On 6 June 2014 his solicitors submitted an application form seeking leave to remain in the UK under Appendix F M of the Immigration Rules (HC194) and article 8 ECHR. The application was based on the petitioner being in a genuine and subsisting relationship with his partner and having contact with his children and grandchildren with whom he claimed to be in close relationships. He completed both the application form and a “paper apart”. In the paper apart the petitioner made reference to paragraph 353 of the Immigration Rules and to article 8 ECHR.
[3] The petitioner claimed that he was in an ongoing relationship with Ms N whom he had met in 2011 and with whom he had been living in Glasgow since 2013. He stated that she had been diagnosed with breast cancer in 2013 and had been subject to treatment for that condition. She required to take the drug tamoxifen. He had supported her when attending hospital for her treatment. She had collapsed at work and he had taken care of her. He required to continue to give her support. He believed that she would not be able to get access to the drug that she needed were she to live in Zimbabwe. Ms N is also a national of Zimbabwe. She has discretionary leave to remain in the United Kingdom and has no reason to think that that leave will not be extended. She is employed as an assistant in a care home and supports him from her earnings. The petitioner lodged information about Zimbabwe from which he claimed that the medical care available in Zimbabwe was poor and that the necessary drugs would not be available for Ms N. Further, he claimed that the economic situation in Zimbabwe was very poor, with high unemployment, and that there was no reason to think that he would be able to support himself and to continue contact with his family in the UK were he to be removed to Zimbabwe.
[4] The petitioner claimed that he had three children and three grandchildren. Two of his children were grown up and lived with their own families in England. His youngest child, C, date of birth 30 October 1998, lived with her mother, the petitioner’s ex-wife, in Nottingham. The petitioner stated that he had access to C, by agreement with his ex-wife, going to Nottingham to visit her and having her visit him. He kept in touch with all of his children and grandchildren.
[5] The petitioner stated that he had no relatives left in Zimbabwe. All but one of his siblings had died and the one remaining living had moved to South Africa.
[6] In response to a request by the respondent, the petitioner supplied further information to vouch the claims that he made in his application form. That included certificates of birth for his children and grandchildren; letters from his children and ex-wife confirming that he kept in touch with them and that they would miss contact with him were he to be removed from the UK; a letter from Ms N’s GP confirming that she had been diagnosed with cancer and a letter from his sister stating that she had moved to South Africa as she had no relations left in Zimbabwe.
[7] The respondent set out the petitioner’s immigration history in the letter of 27 March 2015. In February 2007 he was arrested on deception charges. (This was accepted by the petitioner who stated in his petition that he was convicted of deception by possessing or using a false instrument for which he was sentenced to a ten month custodial sentence on 29 March 2007.) He claimed asylum on 25 April 2007. That application was refused on 20 November 2007. An appeal against the decision was dismissed on 6 February 2008 and further application for appeal was refused. Rights of appeal became exhausted on 30 March 2009. On 16 October 2009 the petitioner made further submissions on article 8 grounds as his wife and daughter had been granted refugee status and thus leave to remain in the UK. The submissions were rebutted on 15 March 2010.
[8] On 6 June 2014 the petitioner made an application on the basis of his relationship with Ms N, and in the form gave information about his parental relationship with his daughter C and his relationship with his other elder children and his grandchildren. . That application was refused by the respondent by letter dated 4 September 2014 and, following a pre-action protocol letter the current petition was raised. The respondent issued a further letter dated 27 March 2015 which bears to include consideration of whether the submissions amounted to a fresh claim on human rights grounds. Paragraph 353 of the Immigration Rules is as follows:–
“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraphs 333 C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any fresh submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: –
(i) Had not already been considered; and
(ii) Taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas.”
The respondent by the letter of 4 September 2014 rejected the further submissions and by the letter of 27 March 2015 considered whether or not they amounted to a fresh claim. The decision maker directed herself that the question was not whether the Secretary of State considered the claim to be a good one, but rather whether there was a realistic prospect of an immigration judge, exercising anxious scrutiny of the new material, finding in favour of the applicant. She stated that the test may be described as whether or not there is not much more than a fanciful prospect of success.
[9] The rules applying to the petitioner are contained in paragraphs D-LTRP.1.3, D-LTRPT1.3 and 276 CE with reference to R-LTRP1.1 (d) R-LTRPT.1.1 (d) and 276ADE (1) (iii) –(vi) of the Immigration Rules.
[10] The decision maker found that the material in the appeal determination of 6 February 2008 and the decision on a previous submission of 15 March 2010 together with the current material did not create a realistic prospect of success. She noted that the asylum claim which was based on political activity and sexuality was dismissed by an immigration judge because he did not believe the petitioner, finding that he did not establish that he had any sort of difficulties in Zimbabwe apart from those that may be experienced by the population at large. She directed herself that while the current submissions are based on different grounds an immigration judge could have regard to previous findings of lack of credibility.
[11] On page 3 of the letter the decision maker states that she is of the view that the petitioner is not able to meet the suitability requirements for leave to remain, because of his disregard for immigration law as shown by his seeking to evade immigration control, the lodging of an entirely disbelieved asylum application and his absconding from control, together with conflicting information provided regarding the personal details of his family members. She states however that she recognises that an immigration judge may take a different view. The case before me proceeded on the basis that the petitioner may be able to fulfil the suitability requirements.
[12] The relationship with Ms N is considered under the rules and she is found not to be a qualified person having only limited leave to remain in this country. The decision maker therefore finds that there was no realistic prospect of an immigration judge finding that the petitioner is able to meet the requirements for leave to remain as a partner.
[13] The decision maker then considered the application to remain on the basis of the petitioner’s parental relationship with C. She accepted that C is under 18, is settled in the UK and has been resident in the UK for more than seven years. She then considered the requirement of E –LT RPT 2.4 as follows: –
“(a) the applicant must provide evidence that they have either –
(i) sole parental responsibility for the child or that the child normally lives with them; or
(ii) access rights to the child; and
(b) the applicant must provide evidence that they are taking, and intend to continue to take, an active role in the child’s upbringing.”
She found that the petitioner had not produced sufficient evidence to show that he had access rights to his daughter nor that he took and intended to continue to take an active role in her upbringing. She stated
“You were asked to provide evidence of your ongoing relationship with [C] on 21 August 2014 and to date you have not produced this evidence. It is not therefore accepted that you have a parental relationship with C that brings you within the ambit of Appendix F M and you are therefore are unable to meet the requirements set out above. For the same reasons paragraph EX1 (A) does not apply. There is no realistic prospect of an immigration judge finding that you are able to meet the rules for leave to remain as a parent.”
[14] The decision maker stated that consideration of C’s best interests had been incorporated into the...
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