Petition By Bc Against Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lady Scott |
| Neutral Citation | [2017] CSOH 83 |
| Docket Number | P1222/16 |
| Court | Court of Session |
| Date | 02 June 2017 |
| Published date | 02 June 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 83
P1222/16
OPINION OF LADY SCOTT
In the Petition by
B.C.
Petitioner
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Petitioner: Winter; Drummond Miller LLP
Respondent: Smith; Office of the Advocate General
2 June 2017
Introduction
[1] This is a petition seeking reduction of a decision of the Secretary of State for the Home Department to refuse to treat further submissions in a human rights claim as a fresh claim.
[2] The further submissions were based upon the petitioner’s family life, in particular his dependency on his family in the United Kingdom whereby his rights under Article 8 of the European Convention of Human Rights (ECHR) would be engaged and his removal would constitute a disproportionate interference in those rights.
Background of the Claim
[3] The petitioner is Chinese. He was born on 21 July 1990. He arrived in the United Kingdom on 17 October 2010 and claimed asylum on 27 October 2010. His asylum claim was refused on 12 November 2010 and his appeal against that decision was refused on 24 November 2010. He then lodged further submissions and additional further submissions the latter of which were the subject of the petition.
[4] The relevant Immigration Rule 353 is in the following terms:
“When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further 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.”
The Facts
[5] The petitioner was born in China and from a young age lived with his grandparents as his parents had moved to the UK. Only his grandfather (aged 83) is left in China. The petitioner has been living with his parents and sister, who are settled within the UK, for about two and a half years. He is financially dependent on his family and claims in his further submissions that he is dependent for care and emotional support from them, due to his mental health difficulties. He has long suffered from a neurological condition which causes chronic motor and vocal tics including grunting, squeaking and twitching. He receives appropriate treatment. These symptoms had led to deteriorating mental health difficulties of depression and anxiety (as rehearsed in the reports and supporting documentation at 6/2 of process).
The Decision under Review
[6] By letter dated 3 October 2016 the respondent refused to treat the further submissions as a fresh claim (No 6/3 of process).
[7] In the decision letter under the heading of Exceptional Circumstances (page 6) the respondent states the following :
“Consideration is given to your claims that you have been re-united with your family which consists of your Father, Mother and younger sister. Family life does not usually engage Article 8, in relationships between adult family members, such as parents and their adult children... except in cases of unusual or exceptional dependency. It is not considered that there is an unusual or exceptional dependency in your case.”
[8] This was repeated in the respondent's letter of 18 November 2016 (No 6/5 of process):
“This matter has been considered on many occasions and it is commonly accepted that family life would not normally exist at all between parents and adult children within the meaning of Article 8 in the absence of further elements of dependency which went beyond normal emotional ties”
The Issues
(1) Did the respondent err in law in her decision to refuse the further submissions on the basis that family life under Article 8 of the ECtHR is not usually engaged between adult members except in cases of unusual or exceptional dependency?
(2) Did the respondent err in the assessment of proportionality?
(3) Can it be said that the respondent, absent the error, would have reached the same decision?
(1) Did the respondent err in law in her decision to refuse the further submissions on the basis that family life under Article 8 is not usually engaged between adult members except in cases of unusual or exceptional dependency?
[9] It was agreed between parties that what constitutes family life within the meaning of Article 8 was fact sensitive — Gurung at [44]. It was also agreed that family life could include adult children. The respondent argued that the case law in the situation of adult children reflected the view that further elements of dependency are required and she relied upon the observations of Sedley LJ and Arden LJ in Kugathas at [14] and [25] rehearsed in Ghising [2012] UKUT 00160 (IAC) at [62].
[10] But it was not really in dispute that nowhere in the case law is it suggested that there was a legal test of unusual or exceptional dependency which fell to be applied.
[11] The respondent's primary submission was that this expression was used as no more than a reference to the usual position in case law which suggests for adult children there is a requirement for dependency or more than the usual family ties. It was not a legal test being applied. It merely reflected that if there were nothing unusual no adult claimant could engage Article 8. As such the observations regarding “unusual and exceptional dependency” did not fall to be read as the application of a legal test.
[12] I cannot accept this submission. In my view the plain reading of the decision letters rehearsed above is that the basis of refusal of the claim is the absence of the criterion of “unusual or exceptional” dependency. This suggests those...
To continue reading
Request your trial