Kishor Dangol (ap) V. Secretary Of State Of For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Bonomy,Lord Reed |
| Judgment Date | 16 March 2011 |
| Neutral Citation | [2011] CSIH 20 |
| Court | Court of Session |
| Published date | 16 March 2011 |
| Docket Number | P2027/08 |
| Date | 16 March 2011 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Reed Lord Bonomy Lord Brodie | [2011] CSIH 20 P2027/08 OPINION OF THE COURT delivered by LORD BONOMY in Reclaiming Motion by KISHOR DANGOL (AP) Petitioner and Reclaimer; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: _______ |
Alt: Webster; Solicitor to the Office of the Advocate General for Scotland
16 March 2011
Background
[1] Like so many applicants in cases before this court relating to immigration issues, the reclaimer has been in Scotland for a considerable period of time during which a number of applications to stay in the country have been dealt with by the respondent. Such cases often involve claims for asylum in which it is said that the applicant would face a grave risk of serious harm were the applicant to be returned to the country of origin. This reclaimer, however, does not anticipate any threat of harm were he to be returned to his country of origin. His claim to be allowed to remain in the United Kingdom is based on his contention that over the period of eleven and a half years that he has been here he has built up such a strong private life here that his removal from the United Kingdom would breach his right under Article 8 of the European Convention on Human Rights to have his private life respected and only interefered with to the extent that is lawful and necessary.
[2] The particular decision in issue in this petition is that of the respondent dated 12 December 2008 refusing to treat representations made on behalf of the reclaimer as a fresh claim for permission to remain. The reclaimer's immigration history is set out in that letter in the following terms:
"Your client arrived in the UK on 27 August 1999 and was granted leave to enter as a work permit holder until 5 September 1999 however, he failed to leave the United Kingdom (UK) and did not come to light until he was encountered working illegally by Immigration officers on 13 October 2001 at Amritsar Restaurant in Kirkcaldy. He was served with illegal entry papers and only then did he decide to claim Asylum on 17 October 2001.
This claim was refused on 07 August 2002 and he appealed against this decision. The appeal was dismissed on 07 March 2003 and he was denied permission to appeal this decision on 15 April 2003. He then became Appeal Rights Exhausted on 1 May 2003.
Subsequently, an application for leave to remain as a student was submitted on behalf of your client on 23 March 2004 however, this was refused on 19 March 2005.
On 2 October 2005 your client was encountered again working illegally at Amritsar Restaurant when he was arrested and detained. On 4 October 2005 your client made a fresh Asylum submission which was refused as further representations on 26 October 2005. Removal directions were then set for 4 November 2005 and as a consequence an application for Judicial Review (J.R.) was lodged by your client on 28/10/05. Removal Directions were cancelled on 1 November 2005 and he was released on bail on 5/11/05.
On 12 December 2005 permission to proceed to paper hearing for the J.R was refused. On 30/03/06 further representations were lodged asking for the J.R to proceed to an oral hearing and on 05 April 2006 the oral hearing was adjourned. On 22 September 2006 your client was advised that his representations amounted to a fresh Asylum claim. The claim was refused on 12 April 2007 and his appeal dismissed on 31 May 2007. He then became Appeal Rights exhausted again on 24 July 2007.
Subsequently, your client was encountered working illegally at Amritsar Restaurant for the 3rd time by Immigration Officers.
On 11 January 2008 and 07 February 2008 further representations were lodged on your client's behalf when his representatives sought a 'Legacy Review' of this case. On 28 March 2008 these representations were refused and your client was advised that his case failed to provide any sufficiently compelling or compassionate circumstances to justify allowing him to remain in the UK outside of the Immigration rules.
On 02 June 2008 your client applied to the IOM for assistance to return to Nepal advising that he intended returning in September however, he failed to follow up his interest and the offer of assistance was withdrawn on 06 October 2008."
[3] The further representations which became the subject matter of the decision letter of 12 December 2008 were made on 19 November 2008 and are summarised in the petition as follows:
"The gravamen of those representations was that over the 9 years the Petitioner had been in the United Kingdom (and in respect of only the initial 2 years of which the Petitioner had not been in regular contact with the Immigration Authorities), he had built up a sufficiently strong private life in the United Kingdom to make his removal from the United Kingdom disproportionate and in breach of Article 8 ECHR. The representations submitted in support of that application were extensive, and were designed to seek to demonstrate the extent to which the Petitioner had become embedded in Scottish society. The representations including many personal references, a petition to the Scottish Parliament, evidence of his educational qualifications and of his involvement in a great many societies and organisations was produced to the Secretary of State. The Secretary of State was already aware that the petitioner also had a record of employment, albeit that was not employment he had been authorised to take, but it was nonetheless relevant to his private life in the United Kingdom."
The Law
[4] These submissions fell to be considered under Immigration Rule 353 which 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."
[5] It was common ground that under this rule the respondent has first of all to consider the submissions themselves and reach a decision on them. Only if they are rejected does the respondent require to proceed to the second stage and address the issues referred to in paragraphs (i) and (ii) of the Rule. It was also common ground that the first stage of that exercise had been duly completed, the decision letter stating specifically that "the contents of your representations have been carefully considered but for the reasons given below we are satisfied that your client's removal does not breach the European Convention on Human Rights." The debate before us centred on whether the decision letter demonstrated that the respondent had carried out the second stage properly.
[6] Before turning to the submissions for the parties on that question, it is appropriate to say something about the proper approach by the court to challenges based on failure to comply with Rule 353. Counsel for both parties were particularly anxious that we should address what they saw as a conflict between an evolving approach to such challenges in the courts of England and Wales, which had been echoed in certain decisions in the Outer House, on the one hand, and the approach approved by the Inner House and thus binding on judges of the Outer House, on the other. The point is most clearly highlighted in the opinion of Lord Tyre in IM (AP) v Secretary of State for the Home Department [2010] CSOH 103. Having recorded parties' agreement that the case should be dealt with along traditional judicial review lines whereby, should an error be identified, the case would generally be remitted for reconsideration by the original decision maker, as explained by Buxton LJ in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, [2007] Imm AR 337 at paragraphs 8 to 11 and adopted in the decision of the Second Division in FO, Petitioner [2010] CSIH 16, [2010] SLT 1087 at paragraph 23, Lord Tyre decided that that approach required to be modified to reflect the opinions expressed in recent decisions of the House of Lords, Supreme Court and the Court of Appeal, in particular ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, [2009] 1 WLR 348 and R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116, [2010] 4 All ER 448 at paragraph 10. He took the view that, in light of these opinions, the appropriate course would generally be for the reviewing judge to address and decide the substantive question whether there...
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