E.p. V. The Secretary Of State For The Home Department For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lady Smith,Lord McGhie |
| Neutral Citation | [2014] CSIH 30 |
| Date | 04 April 2014 |
| Docket Number | P227/13 |
| Published date | 04 April 2014 |
| Court | Court of Session |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| [2014] CSIH 30 | |
| Lady Smith Lord Drummond Young Lord McGhie | P227/13 OPINION OF THE COURT delivered by LADY SMITH in the reclaiming motion of E.P. Petitioner and Reclaimer; Against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent : For Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) _______________ |
Dewar QC and Winter; Drummond Miller LLP (for Katani & Co, Glasgow)
Webster; Office of the Advocate General
4 April 2014
BACKGROUND
[1] The reclaimer (appellant) is a Zimbabwean national who claims to have arrived in the UK on 8 February 1999. He was granted 6 months leave to enter the country. He was subsequently granted leave to remain, as a student, until 31 October 2001 but he overstayed and made no further attempts to secure leave to remain.
[2] On 20 April 2007, he was convicted, in England, of driving with excess alcohol, driving whilst disqualified and of two counts of resisting arrest. On 14 May 2007, he was sentenced to 3 months and 20 days imprisonment and the court recommended that he be deported. He also had prior convictions; he has eight convictions in respect of nineteen offences. On 16 July 2007, the reclaimer claimed asylum. His claim was refused and, after an unsuccessful appeal, he was served with an order for deportation on 28 February 2008.
[3] On 13 December 2010, the reclaimer's daughter was born in the UK. On 10 June 2011, he married the mother of his daughter ("PM"), a woman who had been granted refugee status in the UK. She already had one older child of whom the reclaimer is not the father; that child had been living in Zimbabwe but was reunited with PM in April 2010. He made a fresh but unsuccessful claim under reference to the fact of his marriage and that he now had a child.
First Tier Tribunal "FTT")
[4] The reclaimer appealed to the FTT and his appeal was heard on 23 January 2012. He relied, at that stage, on various grounds but now only seeks to rely on article 8 ECHR.
[5] The FTT did not believe the reclaimer's account of his domestic circumstances. In particular, the panel did not believe that he was living in family with PM and the two children. The FTT considered that, rather, he was seeking to advance, not for the first time, any pretext that he could to remain in the country and to tell whatever story he thought might tide him over any difficulties confronting him. The FTT considered that his claim was opportunistic. It is not necessary, for present purposes, to rehearse in detail their reasons for so concluding. Suffice it to say that they did give detailed reasons for their conclusions which included that the reclaimer was a "pretty well wholly unconvincing" witness (paragraph 87), that although he said he was living in family with PM, he had deliberately represented to NASS that he was continuing to live alone so as to secure continuing financial support, that he had previously claimed that he was married to a different woman, that he had worked illegally and that his marriage certificate stated that he was a nursing home assistant when he was not.
[6] The FTT also heard evidence from PM but found her to be "less than convincing" (paragraph 87). Overall, they concluded that the relationship between the reclaimer and PM, "whatever it might be, was very considerably less than claimed" (paragraph 87) and they did not believe that he fulfilled the family role and family duties that he claimed he did.
[7] Once the FTT had drawn their conclusions as to the facts, their next step was, as set out in paragraph 88:
"88......to apply the authorities to us (sic). Although not cited before us, the recent case of MK(Best Interests of Child) India [2010] UKUT 00475 (IAC) was to the forefront of our consideration. We considered that as a first element we had to look at what the best interests of the two children might be, and then, having reached a conclusion on that, ought to proceed to the balancing exercise of Article 8. The purpose of this procedure, as explained by the Upper Tribunal, would be to avoid contamination of the interests of the child with other factors such as the immigration history of any of its parents."
[8] The FTT concluded that, given their assessment of the evidence, "the greater part of the best interests of the children before us focused on their mother", that the reclaimer was "a minor element in their lives", that "the benefit that flowed from his presence was of limited significance" (paragraph 89) and that the best interests of the children lay in remaining with their mother and "to a greatly reduced element to having some contact with the appellant such as was not deleterious to them" (paragraph 90). That last comment arose from the FTT reminding themselves that this was a man who had been in prison and who, on their findings, had a casual attitude to honesty. The FTT then turned to the balancing exercise:
" 91. Against that background, we progressed to the balancing exercise. The appellant's immigration history, as noted, is very bad. He has served imprisonment for serious offences. He has been recommended for deportation. His contribution to this country has at best been very limited. His defiance of UK immigration law is marked. The maintenance of a fair and effective immigration system is an important priority. The protection of the public from repeated drunk drivers who are "foreign criminals" is an important factor. The prevention of abuse of limited funds made available to those seeking asylum in Britain is a factor to be borne in mind. The appellant's stay in this country has been pretty well in defiance of our immigration laws. Taking all of these factors and balancing them against the limited private and family life considerations above discussed, we concluded that the removal of the appellant would engage Article 8 to a material extent but would be legal, necessary for an approved purpose in terms of Article 8(2) and proportionate to that aim."
Permission to Appeal ("PTA")
[9] The reclaimer sought but was refused PTA by the FTT after his application having been considered by another judge of the FTT. He then sought PTA from the UT. There was a single ground upon which that PTA was sought, namely that the FTT had adopted the wrong approach when assessing the best interests of the children; it was expanded upon under reference to the need to apply anxious scrutiny, to treat the children's best interests as the first and a distinct stage, to avoid fixing children with the actions of adults, to assess the appellant's private life, to apply a low standard when assessing whether or not family life was established, to treat as a starting point that it is in the best interests of a child to be brought up by its parents and to assess whether it was reasonable to expect PM and the children to relocate but it was, essentially, that the FTT should have adopted a different approach to the assessment of the best interests of the children and, having failed to do so, their decision to refuse the reclaimer's appeal was undermined. That application was also refused, by notice dated 27 April 2012. That was a decision of UT Judge R Kekic who gave, as his reasons :
"1. The appellant is a Zimbabwean citizen who appeals against the refusal to revoke a deportation order.
2. The grounds argue that the First-tier Tribunal erred in adopting the wrong approach in respect of the best interests of the children. It is argued that the immigration history of the appellant and his wife are irrelevant considerations when assessing the children's interests. The grounds also argue that the findings on family and private life are unclear and that no consideration was given to whether it would be reasonable to expect the appellant's wife and step child to accompany him to Zimbabwe.
3. The First-tier Tribunal set out its approach at paragraph 83. It proposed to follow EO Turkey. It set out the respondent's case which included the appellant's eight criminal convictions for nineteen offences and his immigration history as the background for finding that he was liable to deportation. It then considered the asylum claim after which it came to Article 8. Full consideration was given to the appellant's family and private life. The serious difficulties with the appellant's evidence are noted. It considered MK India even though no attempt to argue the case was made by the appellant's representatives (paragraph 88). The Tribunal reminded itself that the best interests of the children were at the forefront of its mind. It was entitled to find that the older child had lived in Zimbabwe independently of her mother until recently and that her best interest was to remain with her. The same applied to the appellant's child, who was under a year old. The Tribunal found that the appellant was a minor element in their lives and rejected the picture painted by the appellant and his wife (whom he only recently married) of their domestic circumstances. Given the conduct and behaviour of the appellant, it found that it had not been shown that the best interests of either child were to have continued contact with the appellant. A full and thorough balancing exercise was carried out and no error is apparent."
[10] Accordingly, by 27 April 2012, the reclaimer's present claim had been considered within the tribunal system, on three separate occasions and had become the subject of three separate judicial decisions. It had also, of course, prior thereto, been determined within the administrative process, by the respondent who had provided detailed reasons for refusing the application.
Judicial Review
[11] The reclaimer presented a petition for judicial review, seeking reduction of the UT's refusal to grant PTA. The petition appears to seek to conform with the guidance set out in Eba v Advocate General for Scotland 2012 SC (UKSC) 1; whilst there are no averments that "some...
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